Ramani Ammal vs Susilammal

K. M. Natarajan, J.

This appeal is preferred by the plaintiff in O. S. No. 817 of 1979 on the file of the Subordinate Judge, Madurai, challenging the decree and

judgment in the said suit dismissing the main relief regarding specific performance but granting the alternative relief directing the defendant to pay

the amount paid by the plaintiff. For the sake of convenience, the array of parties in the court below is adopted herealso.

The case of the plaintiff as disclosed in the plaint can be briefly stated as follows: The defendant agreed to convey the suit property to the

plaintiff and both of them entered into a contract of sale under an agreement dated 23-10-1978. As per the terms of the agreement, the defendant

agreed to sell the property for a consideration of Rupees 89,000/-. A sum of Rs. 5,001/- was paid on the date of the agreement as advance and

has been acknowledged by the defendant in the agreement itself. The period of performance under the sale agreement is 4 months. As per the

terms of the contract, the defendant has to vacate the tenant from the scheduled property and deliver possession to the plaintiff with keys at the

time of execution and registration of the sale deed. The plaintiff was directed to discharge the existing equitable mortgage liability over the suit

property.

In pursuance of the terms of the contract of sale, the plaintiff discharged the existing encumbrance over the suit property on payment of Rs.

31,500/- from out of the sale consideration on 6-12-1978. The plaintiff paid a further sum of Rs. 3,500/- as the defendant wanted a further

advance and she has also acknowledged the same. After deducting the above payments, the plaintiff has to pay a balance of Rs.48,999/- to the

defendant towards the sale consideration at the time of execution of the sale deed. Even though the defendant undertook to vacate the tenant within

the stipulated time, the defendant requested the plaintiff for extension of time for performance of the contract as she was unable to vacate the tenant

and by consent of both the parties, time was extended for a further period of 3 months from 11-2-1979 and the same has been endorsed in the

suit agreement. It is stated that though the plaintiff was always ready and willing to perform her part of the contract from the beginning, the

defendant was not performing the same. Notice was issued by the plaintiff on 4-5-1979 calling upon the defendant to perform her part of the

contract by expressing her readiness and willingness to perform the contract. The defendant wantonly delayed the receipt of the notice and chose

to send a reply dated 15-5-1979 contending false and untrue allegations. The plaintiff also issued a telegram on 8-5-1979 calling upon the

defendant to perform her part of the contract. The defendant through her husband approached the father of the plaintiff and pleaded for some more

time. The plaintiff''s father believed the words and expected the defendant to honour her commitment. But, since the defendant and her husband

did not evince any interest, another notice was issued on 16-6-1979 giving one more opportunity to the defendant to perform her part of the

contract. A reply dated 25-6-1979 was sent with false allegations. Since the defendant has committed breach of contract, the plaintiff laid the suit

for specific performance of the sale agreement dated 23-10-1978 expressing her readiness to deposit the balance of sale consideration as and

when directed by the court. She has prayed for the relief of specific performance of the suit agreement directing the defendant to execute the sale

deed after receiving the balance of sale consideration of Rs. 48,999/- and deliver possession. She also alternatively prayed for a decree directing

the defendant to pay the plaintiff Rs.40,001/- being the amount paid by her to the defendant with interest at 12 per cent per annum.

The said suit was resisted by the defendant and in the written statement, the defendant denied the allegations and inter alia contended as follows :

The defendant admitted the execution of the agreement, the terms of the agreement set out in the plaint and also the receipt of advance of Rs.

5,001/- on the date of the agreement. She would state that she was in occupation of a portion of the suit property along with her family members,

and the remaining portion was let out to the tenant Ponniah Nadar on a monthly rent of Rs. 180/-. Since vacant possession has to be given to the

plaintiff, she and her husband wanted a long period for execution of the sale deed. The plaintiff and her husband stated that the period for

performance of the agreement may be fixed at 4 months from the date of the agreement at the first instance and the same may be extended if the

tenant could not be evicted and the defendant could not find out an alternative accommodation. The contingency of the need for resorting to the

Rent Control Act was also contemplated if the tenant did not vacate and deliver possession. The plaintiff agreed that she herself would take action

against the tenant and the defendant would execute the sale deed if such a contingency arises and that in the meantime the defendant may also

vacate. The defendant admitted the discharge of the equitable mortgage debt due to one Ar. Ramanathan Chettiar on payment of Rs. 31,500/- by

the plaintiff. But the defendant contended that though the plaintiff promised to hand over all the title deeds to the defendant on redemption of the

mortgage, she did not hand over the same and that she has been retaining them. The defendant also admitted the receipt of Rs. 3,500/- from the

plaintiff by way of further advance on the same day and the extension of 3 months time at her request. She would further state that since it was not

possible for her to vacate the tenant during the extended period and since she could not find an alternative accommodation, she wanted further

extension of time for performance of the agreement or in the alternative she asked the plaintiff to have the sale deed executed and take necessary

action for evicting the tenant and assuring her that in the meanwhile she would find alternative accommodation and vacate the premises in

accordance with the agreement between the parties. Though the plaintiff promised to consider the same and inform her, she did not do so and on

the other hand, she issued a notice through her counsel on 4-5-1979 making false allegations. She also sent a reply notice dated 15-5-1979

through her counsel stating true facts and also bringing it to the notice of the plaintiff that breach of the agreement was committed by the plaintiff

and she was not entitled to the relief of specific performance of the agreement since as per the terms of the agreement and under law, she is bound

to agree for extension of time to enable the defendant to vacate the tenant, or obtain a sale deed and take proceedings for eviction by herself. A

reply telegram was also sent to the telegram sent by the plaintiff. To the second notice issued by the plaintiff on 16-6-1979, she sent a reply notice

dated 25-6-1979 through her counsel denying the claim of the plaintiff. The defendant submitted that the plaintiff is entitled only to the return of the

amounts paid by her to the defendant excepting Rs. 5,001/-the advance paid, which she has lost on account of the breach of the agreement

committed by her. Hence, she prayed for dismissal of the suit.

The plaintiff filed a reply-statement dated 8-4-1980 wherein she specifically denied the allegations in the written statement which are contrary to

the allegations in the plaint as false. She would submit that at the time when the agreement of sale was entered into on 23-10-1978, the parties

never contemplated the situation for extension of time. The defendant and her husband agreed to complete the transaction and hand over vacant

possession within 4 months time. The plaintiff never agreed at the time of the agreement for extension of time if need be. The other allegations

regarding the plaintiff resorting to rent control proceedings and the plaintiff agreeing to have the sale transaction completed and to take necessary

action against the tenant are all denied as false. According to the plaintiff, the above allegations are invented to escape the liability. The plaintiff

never agreed to any such term. Further, such alleged parole agreements contrary to the written contract are inadmissible and invalid under law. The

plaintiff never promised to hand over all the title deeds after discharge of the equitable mortgage and the allegations contra are nothing but

falsehood. The plaintiff as proof of discharge and under the terms of the contract is retaining the title deeds. The allegation in para 6 of the written

statement as if the plaintiff promised to consider, decide and inform the defendant about the alleged representation of the defendant is a deliberate

lie. It is specifically averred that the plaintiff has always been ready and willing to perform her part of the contract and has been insisting upon the

defendant at all material time to fulfil the contract of sale and the plaintiff is not at all obliged to agree for extension of time till the tenant vacated or

to have the sale deed completed and herself take action to evict the tenant. The plaintiff never put an end to the contract and on the other hand, it is

only the defendant who committed breach of the agreement and the plaintiff has no other remedy except to file the suit.

In the additional written statement filed by the defendant, the allegations in the reply statement were denied and it is contended that there was an

oral agreement providing extension of time and such an agreement is perfectly legal and valid and forms an important term of the contract. Such

terms are not opposed to the terms mentioned in the agreement. Further, it is perfectly legal and valid and enforceable under law. The retention of

the title deeds by the plaintiff after discharge of the mortgage is not in pursuance of the part performance of the sale as contended by the plaintiff

and the allegations made in this regard are without any substance or merit, besides being false and incorrect. Under the terms of the contract, the

plaintiff has to accede to the request of the defendant for extension of time and her refusal to do so would amount to breach of contract. The penal

clause referred to in the agreement will show cancellation of the agreement and it was contemplated in the agreement itself at the instance of either

party and in the circumstances the cancellation pleaded in the written statement by the defendant is true and probable. It is further stated that in

view of the breach committed by the plaintiff, she is entitled only to a sum of Rs. 35,000/- paid by her for discharge of the mortgage and also the

second advance of Rs.3,500/- and not Rs. 5,001/- paid as advance under the agreement. It is stated that the defendant was never unwilling to

complete the sale transaction and on the other hand, the plaintiff acted contrary to the terms of the agreement of sale, as a result of which the

contract stood cancelled. Lastly, it is stated that if for any reason the court feels that the defendant committed breach of the contract under the

clause in the agreement empowering her to cancel the agreement, she is willing to deposit Rs. 10,002/- and if the agreement is cancelled, she is

willing to pay court fee on the claim. Hence, she prayed for dismissal of the suit.

On the pleadings, the following issues were framed:

Whether the sale agreement was cancelled?

Whether the oral agreement pleaded by the defendant is true?

Whether the plaintiff committed breach of contract?

Whether the plaintiff is guilty of laches and delay?

Whether the plaintiff is entitled to specific performance of the agreement?

To what relief is the plaintiff entitled? The following additional issue was framed :

Whether the agreement of sale is liable to be cancelled as claimed by the defendant?

On behalf of the plaintiff, Ex. A-1 to A-14 were exhibited and one witness was examined. On the side of the defendant, 2 witnesses were

examined. No document was marked. 9. The learned Subordinate Judge for the reasons assigned in his judgment held under issues 1 to 4 that the

oral agreement pleaded by the defendant is not true and consequently the sale agreement was not liable to be treated as cancelled because of the

alleged oral agreement between the parties. Further, there is equally no acceptable evidence on the side of the defendant to show that the plaintiff

committed breach of contract or that he is guilty of laches and delays. As such, all those issues were found in favour of the plaintiff and as against

the defendant. Under issue No. 5 and additional issue, it was held that the plaintiff is not entitled to specific performance of the agreement and that

the sale agreement is liable to be cancelled as claimed by the defendant. Finally, the trial court dismissed the suit with regard to the relief of specific

performance of sale agreement while-decreeing the suit with regard to the alternative relief directing the defendant to pay Rs. 35,000/- together

with interest at 12 per cent per annum from 6-12-1978 together with an additional sum of Rs. 10,002/-, while directing the parties to bear their

respective costs. Aggrieved by the same, this appeal is filed.

This appeal along with A.S. Nos. 611 and 752 of 1966 and 819 of 1989 was referred to the Full Bench on the question concerning the legal

propriety of the plaintiff who sued for specific performance of a contract of sale and who also, in the same suit, asked, in the alternative, for the

relief of refund of earnest money or advance money, paid under the contract of sale, preferring an appeal against the judgment and decree of the

first Court which granted him only the relief of return of the earnest money or advance money, while denying him the relief of specific performance.

The Full Bench, in P. Kathavan Servai and Others Vs. Rahima Beevi and Others, to which one of us (K. M. Natarajan, J.) is a party, held:

The alternative relief includes refund of any earnest money or deposit paid or made by the plaintiff. The grant of an alternative relief would arise

only in case the plaintiff''s claim for specific performance is refused. When the plaintiff asks for the alternative relief, there is no legal presumption or

assumption that he gives up the main or primary relief of specific performance of the contract only in the context of the statute, which confirmed

them. The decision of the first court insofar as it negatives the primary relief of specific performance, is materially adverse to the plaintiff. In other

words, he has been denied or deprived of something what, according to the plaintiff, he is entitled to. Viewed in the above light, certainly an appeal

by the plaintiff obtaining only the alternative relief of refund of the earnest money or advance money and who has been denied the relief of specific

performance is a competent appeal. Insofar as the first court denied him of the relief of specific performance, the plaintiff must be held to be an

aggrieved person. There could be an an exception and that is where the plaintiff has acted or conducted himself in such a manner to approbate the

judgment and decree given to him, such as taking the benefit therein and in such a case, he cannot be permitted to reprobate the judgment by

appealing against it. This principle has been taken note of by the later Division Bench in Senniappa Gounder v. V. K. Venkataraman (1981) 94

MLW 591. We find that in the earlier Division Bench, though there are categoric expression indicating a contrary position, yet the discussion of the

facts does indicate that the plaintiff was desirous of taking the benefit under the decree and tried, if possible to challenge the other portion of the

judgment, which is prejudicial to him.

While so answering the issue, it was held :

Sakku Bai Amman Vs. R. Babu Reddiar and Others, , running contrary to what we have expressed above, stands overruled.

In view of the decision of the Full Bench, the question regarding the competency of the plaintiff to file the appeal as an aggrieved person is

answered in favour of the appellant-plaintiff.

As regards the merits of the appeal, the learned counsel for the appellant Mr. K. Sengottian, submitted that the trial court having found issues 1

to 4 in favour of the appellant-plaintiff and having held that the plaintiff has not committed breach of the contract and is not guilty of laches and

delays, but on the other the defendant has committed the breach of contract, ought to have granted the main relief of specific performance, that the

reasons given by the trial court for negativing relief of specific performance but granting the alternative relief of refunding the advance money and

further payments towards sale consideration are not sustainable and that the plaintiff should be given the decree for the main relief of specific

performance. On the other hand, the learned senior counsel appearing for the respondent. Mr. G. Subramaniam, submitted that in the case of the

appellant-plaintiff, the readiness and willingness are absent and that the appellant is not entitled to the discretionary relief of specific performance.

He would further contend that in the additional written statement, the respondent made the counter-claim for cancellation of the agreement, that the

trial court has found the said counter-claim in favour of the respondent and that since no appeal has been filed against the counterclaim, the plaintiff

is not entitled to the relief of specific performance. Per contra, Mr. Sengottian submitted that no counter-claim is maintainable in law in the case of

a suit for specific performance and the counter-claim as contemplated under Order VIII, C.P.C. is only in respect of a suit where the claim is made

for recovery of money. Further, there is no decree for the counter-claim. He would also submit that no such counter-claim was made in the original

written statement and even in the additional written statement. Such a relief was not put by way of counter-claim and no court-fee was paid. It is

only a pleading in respect of which there was an issue. There is no need to file a separate appeal as court-fee has been paid for the entire suit claim

in the appeal and as such there is no need to pay separate court-fee Rs. 10,002/-which was the amount, according to the respondent payable. He

would submit that the said finding has been challenged in the grounds of appeal, in ground Nos. 6, 10, 13 and ! 5. It was next contended by the

learned counsel for the respondent that vacating the tenant is an essential term according to the defendant, that the contract in the case is a

contingent one, that in this case as delivery of possession is not possible, the performance of contract is impossible and that on this ground also, the

plaintiff is not entitled to the relief of specific performance. On the other hand, the learned counsel for the appellant submitted that such a contingent

contract is not pleaded, that it is not a contingent contract on facts, that even otherwise such a contingency happened even in February, 1980 when

the tenant vacated the premises, that this court can take note of the subsequent events and that there is no merit in the contention.

As regards the contention whether the plaintiff has been ready and willing to perform her part of the agreement, it is seen that the suit

agreement came into existence on 23-10-1978. As per the terms of the agreement, the plaintiff agreed to pay Rs. 89,000/-towards the sale

consideration, and out of the sale consideration a sum of Rs. 5,001/- was paid on the date of the agreement as advance and the period of

performance of the contract was fixed as 4 months. As per the terms of the agreement, the plaintiff also discharged the existing encumbrance over

the suit property by payment of Rs. 31,500/- out of the sale consideration, on 6-12-1978. The plaintiff also paid a sum of Rs. 3,500/- out of the

sale consideration as desired by the defendant, and by consent of the parties, the time was extended for a further period of 3 months from 11-2-

1979 and it was so endorsed on the agreement. On 4-5-1979 under Ex. A-2 the plaintiff sent a registered notice through her lawyer to the

defendant calling upon her to execute the sale deed and deliver possession as per the suit agreement. In Ex. A-2 it has been categorically stated

that the plaintiff has always been ready and willing to have the sale deed executed at her expenses and that it is only the defendant who has been

postponing the same. It has also been mentioned that the period fixed therein expired by 11-5-1979 and she has been directed to act as per the

sale agreement and execute the sale deed. The notice was sent by registered post, acknowledgment due and the defendant was served with the

notice on 5-5-1979. Under Ex. A-4 the plaintiff sent a telegram to the effect that she is ready and willing to complete the sale and that a notice had

already been issued. By that telegram the defendant was called upon to express her willingness to complete the sale. She has also mentioned that

the balance of sale price is ready. The defendant sent Ex. A-10 telegram by way of reply stating that the notice and telegram sent by plaintiff were

received. She has also stated therein that a reply will follow in due course. The defendant never showed readiness and willingness to execute a sale

deed. The defendant sent Ex. A-3 reply on 15-5-1979, to which the plaintiff sent a reply through her lawyer on 16-6-1979 wherein also the

plaintiff categorically expressed that she was always ready and willing to perform her part of the contract as per agreement. Even after the notice

sent by the plaintiff, the defendant was not agreeable for execution of the sale deed, but only insisted on cancellation of the agreement. The suit was

filed on 7-8-1979 within three months from 11-5-1979 when the period of performance was extended by three months. It is seen from the plaint

that the contract was negotiated by the father of the plaintiff on her behalf. The father of the plaintiff was examined as P.W. 1 and he has sopken in

his evidence about the readiness and willingness to perform the contract from the date of the agreement till the date of his deposition and that the

plaintiff is ready to deposit the balance of sale consideration and take the sale deed. It is not the case of the defendant that the plaintiff has no

means or that she has no capacity to pay the amount. u/s 16 of the Specific Relief Act, what is required is that the plaintiff has to aver and prove

that she has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by her. Even

under Explanation to S. 16 it is specifically provided that for the purposes of clause (c) which deals with the averment of readiness and willingness

to perform the contract, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so

directed by the court. It is enough if the plaintiff avers performance of, or readiness or willingness to perform, the contract according to its

construction. Even the lower court on the evidence, under issues 1 to 4 held that there is no acceptable evidence on the side of the defendant to

show that the plaintiff committed breach of contract or that she is guilty of laches and delays. On the other hand, there is the specific finding of the

lower court that the alleged oral agreement pleaded by the defendant is not true. It was also held that the sale agreement was not liable to be

treated as cancelled because of the alleged oral agreement between the parties. It was also held that the defendant was never ready to act as per

the terms of the agreement and that the defendant has committed default. It is brought to the notice of this court that the husband of the defendant

who was examined as D.W. 1, has categorically stated in his evidence that since the value of the property has increased, he was not prepared to

complete the sale agreement. In the circumstances, we do not find any difficulty in holding that the plaintiff has satisfactorily alleged and proved that

she has been always ready and willing to perform her part of the contract. In this connection, the learned counsel for the appellant drew our

attention to Explanation 1 to Section 20 of the Specific Relief Act, wherein it is stated that mere inadequacy of consideration shall not be deemed

to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b) and it shall not disentitle the plaintiff

to obtain a decree for specific performance. In N.B. Namazi Vs. Central Chinmaya Mission Trust, , it has been held that merely because during

the period in question there was escalation in prices, the inadequacy of price could not constitute an unfair advantage and the delay could not be

put against the party so as to deny it right of specific performance.

It was next contended by the learned counsel for the appellant that the trial court was not justified in invoking default clause mentioned in the

agreement and negativing the claim for specific performance while granting the alternative relief of payment of the amount paid by the plaintiff. Even

factually the trial court is not correct in observing that in the sale agreement there is no clause empowering the plaintiff to cancel the sale agreement

by paying any amount by way of damages to the defendant. On the other hand, it is said that in the event of not performing the agreement of sale,

the defendant could have the sale agreement cancelled provided the defendant gives the plaintiff a sum of Rs. 5,001/- in addition to the sum of

Rs.5,001/- already received from the plaintiff. It is to be noted that default clause is provided in respect of the default committed both by the

plaintiff and the defendant in the agreement, that is, in case the defendant committed default, he is liable to return the money with another sum of

Rs. 5,001 /- and if the plaintiff commits default, she has to forfeit the advance paid and that it cannot be said that the default clause is only in the

case of the default committed by the defendant and not by the plaintiff. Now let us consider the effect of the default clause provided under the

agreement. The learned counsel for the appellant submitted that in view of S. 23 of the Specific Relief Act, the default clause is not a bar to the

grant of the relief of specific performance and in support of his contentions, he submitted case-laws : Section 23 of the Specific Relief Act reads as

follows:

Liquidation of damages not a bar to specific performance -- (1) A contract otherwise proper to be specifically enforced, may be so enforced,

though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same, if the court having

regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing

performance of the contract and not for the purpose of giving to the party in default of an option of paying money in lieu of specific performance.

In V.K. Kandasami Chettiar (since deceased) and Others Vs. Shanmugha Thevar and Another, , it was pointed out that the default clause in the

contract provided, inter alia, that ""the individual who commits the default shall pay the other individual Rs. 100/- as damages, and in addition this

contract shall become void"". In that case it was held :

The clause merely states the disability of the defaulting party who claims specific performance of the contract under S. 24(b) of the Specific Relief

Act and does not extend the disability to enforece the contract to the other party and further that the party who brought about the default cannot

take advantage of his own wrong and prevent the other party from claiming specific performance.

Thus, in view of the specific provision of S. 23 of the Specific Relief Act (Section 24 is the corresponding provision in the old Act) and the ratio

laid down in the above decision, the relief of specific performance cannot be negatived.

It was contended by the learned counsel for the respondent that in the instant case it is specifically provided under the document that the

defendant has to deliver possession of the property after vacating the tenant, that the contract in the instant case depends upon the delivery of

possession, that as such the recovery of possession from the defendant is a contingency contemplated under the contract and that since the said

contingency has not been fulfilled, the contract cannot be enforced. According to the learned counsel, since the defendant was unable to evict the

tenant who was in occupation of a portion of the premises, the plaintiff cannot seek performance of the agreement and further the grant of relief to

the plaintiff is beyond the scope of the contract. In this connection, the learned counsel relied on the decision in Koohuvareed v. Mariappa, AIR

1954 TC 10, where it was held:

The doctrine of frustration known to the English law has been statutorily recognised under the Indian law, in this Section. For the application of the

doctrine, it is essential to ascertain the facts assumed by the parties as forming the fundamental basis of their contract and then to see how far the

subsequent developments have resulted in the determination of the very basis of the cotnract, thereby rendering its performance impossible.

Contract for sale of property in possession of lessee under subsisting lease. Both parties, fully aware of the fact, bargaining that sale deed was to

be executed within specified time and possession to be given to purchaser simultaneously. Time made essence of contract and whole contract

proceeding on basis that purchaser getting possession was the all-important factor -- Vendor''s failure to persuade lessee to surrender possession -

-Held, case was one where contract as conceived by the parties had become wholly impossible of performance and not one where there was the

possibility of substantial performance and therefore was not governed by S. 13, Specific Relief Act, but was hit by 2nd para of S. 56, Contract

Act -- Consequently, contract for sale having become void by supervening impossibility, specific performance of the same could not be decreed.

The facts involved in the said case are quite different and in a subsequent case reported in Smt. Purnima Rani Dutta Vs. Smt. Lakshmi Bala Dasi, ,

(rendered by a Division Bench of the said Court) distinguished the said case (Kochuvareed v. Mariappa, AIR 1954 TC 10 and in similar

circumstances as in the instant case, it was held that the appellant-plaintiff is entitled to the relief of specific performance in view of S. 12(3) of the

Specific Relief Act. In the instant case also, the learned counsel for the appellant submitted that the appellant is willing to take the sale deed and she

is relinquishing her claim to vacant possession and the claim for loss of damages in this regard and such a claim can be made even at the stage of

appeal. The facts involved in Smt. Purnima Rani Dutta Vs. Smt. Lakshmi Bala Dasi, , are: ""The defendant entered into an agreement to sell the suit

property to the plaintiff for a consideration of Rs. 5,500/-and executed a registered deed of agreement on 24-11-1972 on acceptance of Rs.

500/- as earnest money towards the consideration. It was agreed between the parties that within four months from the date of the execution of the

deed of agreement the plaintiff would pay the balance consideration money of Rupees 4,800/- and the defendant would execute the sale deed in

respect of the suit land in favour of the plaintiff. It was further stipulated in the agreement that the defendant within three months from the date of the

execution of the deed of agreement would amicably evict the tenant in respect of the suit property and at the time of the execution of the sale deed,

the defendant would give vacant possession of the suit property to the plaintiff and that in default the defendant would refund the earnest money of

Rs. 500/- with interest to the plaintiff. The plaintiff was all along ready and willing to perform her part of the contract but the defendant refused to

perform her part of the contract. The plaintiff accordingly brought the suit for specific performance of the contract and for possession."" It was held :

Held, second part of S. 56 of the Contract Act was not attracted and did not stand in the way of enforcement of the contract for sale when the

alleged impossibility of performance of the defendant''s part of the contract for giving vacant possession had been resorted to by the defendant

without making any bona fide and effective attempt to evict the tenants in terms of the agreement and without keeping the plaintiff informed about

her such attempt and failure. S. 12(3) of the Specific Relief Act was attracted and the plaintiff was entitled to succeed and get possession with

tenants.

In AIR 1954 Trav-Co 10 case, it was found that some of the items covered by the agreement for sale consisted of movable properties which were

surrendered to the lessee when that lease arrangement was entered on 1st January 1917. It was not known as to whether those items did not really

exist and if so in what condition. At any rate the first defendant was not now in a position to deliver those items to the plaintiff. Without such

delivery there could be no completed sale in respect of those movable properties. The plaintiff had not stated that he was prepared to accept the

sale in respect of defendant No. 1''s title to the remaining items of immovable properties only. So long as it is not possible for defendant to hand

over those movables to the plaintiff and to effect a sale of them, the provision in the agreement of sale that the plaintiff should execute a mortgage in

favour of the defendant No. 1 in respect of all the properties to be included in the sale deed, to secure the deferred consideration of Rs. 35,000/-

could not be implemented. The High Court found also that the part of the contract to be specifically enforced did not stand on a separate and

independent footing from the remaining part of the contract as per the terms embodied in the agreement. According to the Travancore Cochin High

Court, it was clear from these terms that the parties contemplated only a single and indivisible transaction by way of sale with immediate delivery of

possession and for effecting such a conveyance the time stipulated was expressly stated to be of the essence of the contract. The High Court

further observed that several terms contained in the agreement read as whole cleearly rules out the possibility of splitting up the contract into

separate an independent parts and of piecemeal performance of such parts. It was further held that the deliberate insertion of the provision in the

agreement that time was of the essence of the particular contract, was the surest indication that transfer of title and possession had to be

simulataneous and within the stipulated time, and that the parties did not want the contract to be governed by the normal rules applicable to

contracts for sale of immovable properties. The Travancore Cochin High Court accordingly dismissed the plaintiff''s suit for the relief of the specific

performance of the contract for sale by applying the doctrine of frustration as embodied in S. 56 of the Indian Contract Act. But, as observed by

the Division Bench in Smt. Purnima Rani Dutta Vs. Smt. Lakshmi Bala Dasi, , the facts in the instant case are different from those in, AIR 1954 T

C 10. The Division Bench of the Calcutta High Court followed the earlier decisions in Arun Prokash Boral v. Tulsi Charan Bose, AIR 1949 Cal

510, and Labanya Roy v. Rai Saheb Phanindra Mohan Mukherjee, 68 CWN 611. In the aforesaid cases, based upon the facts that according to

the agreement to sell premises, the vendor contracted to give vacant possession to the purchaser, but by the default of the vendor, he was unable

to give such possession, it was held that in a suit for specific performance of the contract by the purchaser, the purchaser had option to take the

premises without vacant possession and that the vendor could not say that the purchaser could not do so, as the contract was contract to deliver

the premises with the tenant, and that a party was not entitled to rely on his own default and failure to excuse himself from the performance of the

contract.

In A.L. Parthasarathi Mudaliar Vs. Venkata Kondiah Chettiar, , it was held :

Under S. 15, specific performance had to be ordered and the plaintiff could elect to claim performance of the contract by relinquishing his right to

the property for which the defendant had no title and also the right to claim compensation even at the stage of appeal and not necessarily when he

filed the plaint."" Kalyanpur Lime Workers Ltd. Vs. State of Bihar and Another, and Dwijendra Kumar Roy and Others Vs. Monmohan De and

Others, , Relied on AIR 1932 43 (Privy Council) Distinguished

The above decision was affirmed in A.L. Parthasarathi Mudaliar Vs. Venkata Kondiah Chettiar, . In Thailammal and Others Vs. Angammal, it was

held :

In a suit for specific performance of the contract of sale there is nothing in law to limit the exercise of the option to accept a part to the trial stage

alone. In fact one of the conditions for granting the relief is that the vendor is unable to perform the whole of his part of the contract. This condition,

on which a dispute might arise, cannot be determined finally unless the case goes through the trial and appellant stages. Hence there is no reason to

limit the exercise of the option by the plaintiff seeking the relief of specific performance, to any particular stage of the legal proceedings and can be

exercised at any time before the proceedings are finally decided which may be even in a Court of Second Appeal.

The above view was reiterated by a Division Bench in Ram Niwas v. Omkari, AIR 1963 All 310, wherein it was held :

The relinquishment could be made at any stage of the litigation including the appellate stage. The claim of the plaintiff-appellant for grant of benefit

under S. 12(3) cannot, therefore, be rejected on the simple ground that it was not made at the trial stage and has been made for the first time at the

appellate stage. The claim can also not be rejected on the short ground that it was not incorporated in the plaint or was not set froth in writting

before the trial Court. The question whether the delay in making the claim would or would not disentitle a plaintiff from grant of such a relief is an

entirely separate and different question and its decision would depend on a consideration of the facts and circumstances of each particular case and

the overall conduct of parties. The delay unless it has caused prejudice to the defendants, should not by itself be taken as sufficient to disentitle the

plaintiff from obtaining relief. Kalyanpur Lime Workers Ltd. Vs. State of Bihar and Another, , Rel. on.

Thus, it is clear from the ratio laid down in the above decision that the plaintiff is entitled to relinquish her claim for getting vacant possession and

give up her claim for compensation in this regard and ask for specific performance of execution of the sale deed with the tenants in possession. It is

also made clear that it is open to the plaintiff to exercise that option even at the stage of first appeal or second appeal. The mere fact that the

plaintiff did not put forward that contention before the trial court would not bar her from putting forth the said contention before this court in

appeal. Further, such contention was not raised in the written statement by the defendant before the lower court. Even otherwise, it cannot be said

that the contract is a contingent one. It is recited in the suit agreement that the defendant should deliver vacant possession after vacating the tenant

at the time of execution of the sale deed and within the time specified therein. But, the defendant has not taken any steps to vacate the tenant. But,

he was interested in cancelling the agreement. She cannot take advantage of her own wrong. In the instant case, it is admitted by D.W. 1 that one

Thangaraj was the tenant before entering the agreement Ex. A-1, and that he vacated in April, 1977. He further stated that D.W. 2 was put in

possession in June, 1977 and he also vacated in February 1980. D.W. 2 also admitted that he vacated in February 1980. The learned counsel for

the appellant submitted that this court can certainly take note of the subsequent event for moulding the relief. As seen from the defendant''s

witnesses, it is clear that the tenant also vacated the premises even before the suit was disposed of. There is absolutely nothing to hold that Section

56 of the Contract Act is attracted to the facts of this case and the doctrine of frustration is not made applicable. It is a simple suit for specific

performance of agreement of sale. Though the vendor-defendant agreed to give vacant possession, she did not take any steps to evict the tenant,

and in any event she was unable to give vacant possession. The plaintiff was willing to take the sale deed without vacant possession. The vendor

cannot take advantage of her own wrong to get over the relief of specific performance on that score. Hence, we are of the view that the appellant

is entitled to ask for specific performance of contract of sale, for executing the sale deed without vacant possession but with the tenant in view of

Section 12(3) of the Specific Relief Act.

Lastly it was contended by the learned counsel for the respondent, Mr. G. Subramaniam, that in the instant case, under additional issue No. 1

the lower court held that the sale agreement is liable to be cancelled as claimed by the defendant. The appellant-plaintiff has paid court-fee for the

main relief of specific performance and recovery of possession in the appeal, as has been paid in the lower court in the plaint, and no court-fee is

paid on the counter-claim. According to him, the defendant made a counter-claim in the additional written statement and since no reply statement is

filed for the counter-claim, the counter-claim has to be decreed as per the finding of the lower court at page 12 of the judgment and the plaintiff

cannot agitate the finding as the finding given in the counter-claim will operate as res-judicata. He would state that necessary court-fee has to be

paid for the counter-claim u/s 8 of the Tamil Nadu Court-fees and Suits Valuation Act even in the appeal. In this connection, the learned counsel

drew the attention of this court to the procedure under O. 8, R. 6A to 6F, C.P.C.

On the other hand, the learned counsel for the appellant, Mr. Sengottian, submitted that no counter-claim is maintainable in law in a suit for

specific performance. Further, the plea in the additional written statement does not amount to any counterclaim. No court-fee was also paid on the

additional written statement u/s 8 of the Court-fees Act. He would also state that the sum of Rs. 10,002/- has not been deposited at the time of

filing of the written statement or before the filing of the additional written statement. He would further submit that the court-fee payable for

cancellation of the agreement is under S. 40 C.F. Act and the defendant should have paid court-fee on Rs. 89,000/- if she wants to cancel the

agreement and if really there was any counterclaim for the same. Further, there was no decree for counter-claim. According to the learned counsel,

it is only an issue framed on the pleading in respect of the main relief and the alternative relief prayed for in the suit. He would state that as per O.

8, R. 6A, C.P.C., the defendant in a suit may, in addition to his right of pleading a set-off under R. 6, set up, by way of counter-claim against the

claim of the plaintiff, any right or claim and that he should do so before he has delivered his defence or before the time limited for delivering his

defence has expired, whether such counter-claim is in the nature of a claim for damages or not. In the instant case, the written statement was filed

on 21-3-1980 and the alleged counter-claim was made in the additional written statement filed with a petition to grant leave filed on 25-8-1980

and the same was received on 4-11-1980. The learned counsel for the appellant would submit that in the instant case though the plaintiff was

granted the alternative relief, she has filed the appeal with regard to the judgment and decree negativing the relief of specific performance and she

has paid court-fee for the entire relief as was paid before the lower court and that it is not necessary for her to pay court-fee for each and every

finding in respect of the said suit. It is only challenging the judgment of the court below negativing the relief of specific performance which includes

the relief of cancellation of the agreement, the appeal has been filed and there is no necessity of paying a court-fee on the sum of Rs. 10,002/-

deposited by the defendant as per her additional written statement which case also was not accepted by the court below. But, on the other hand,

the court below directed the defendant to deposit a sum of Rs. 35,000/- with interest at 12 per cent per annum from 6-12-1978 till realisation,

together with an additional sum of Rs. 10,002/-. It is only challenging the said finding that the sale agreement is liable to be cancelled and the

plaintiff is not entitled to the relief of specific performance, the very appeal is filed and it is not against the plea taken by the defendant in the written

statement resisting the claim of the appellant. As such, the question of paying additional court-fee with regard to the alleged counter-claim for

cancellation of the agreement and filing a separate appeal does not arise in the circumstances. With regard to the alleged counter-claim for

cancellation of the agreement made in the additional written statement, the learned counsel for the appellant drew the attention of this court to the

additional written statement wherein the defendant denied the allegations in the reply statement and incidentally in para 8 of the additional written

statement it is stated as follows:

The defendant respectfully submits that if for any reason this Hon''ble Court should feel that the defendant had committed breach of the contract

under the clause in the agreement empowering her to cancel the agreement of sale, she is willing to deposit the sum of Rs. 10,002/- and if the

agreement is cancelled she is also willing to pay court-fee on the said claim.

At the and, the prayer in the additional written statement is:

Wherefore it is prayed that this Hon''ble Court may be pleased to dismiss the suit with cost and thus render justice.

As rightly contended by the learned counsel for the appellant, it is not the prayer in the additional written statement that the counterclaim for

cancellation of the agreement of sale is to be decred. According to the learned counsel for the appellant, it has not been specifically made that the

defendant has set up a counter-claim in the written statement. Under O.8 Rule 6B, C.P.C., it is provided that where any defendant seeks to rely

upon any ground as supporting a right of counterclaim, he shall, in his written statement, state specifically that he does so by way of counterclaim. It

is nowhere stated in the written statement or additional written statement that the defendant has come forward with any counter-claim It is only

stated that in case the Court holds that the defendant has committed breach of the contract under the clause in the agreement empowering the

defendant to cancel the agreement of sale, the defendant is willing to deposit a sum of Rs. 10,000/- as per default clause mentioned in the

agreement and only if the agreement is cancelled, she is willing to pay court-fee on the said claim. For the counter-claim, court-fee is to be paid

along with the claim made in the written statement. Above all, it is vehemently argued by the learned Counsel for the appellant that counter-claim is

maintainable, only in a suit for recovery of money and not in a suit for specific performance. In this connection, the learned Counsel drew the

attention of this Court to the decision reported in Jashwant Singh Vs. Smt. Darshan Kaur and Others, , where a Division Bench of the said Court

held as follows:

The right of the defendant to raise a counter-claim under R. 6A of O.8 has been limited by the Code only in cases where the dispute is in respect

of a money claim. Rule 6A simply enables a defendant to set up by way of counter-claim ""any right or claim in respect of a cause of action accruing

to the defendant against the plaintiff. It cannot be said that in view of Rule 6A a defendant is at liberty to raise any dispute in the suit of the plaintiff

irrespective of its nature. The provisions under the amended Rule 6F of O. 8 and R. 19 of O. 20 make it clear that counterclaim under the rules

aforesaid can be made only in such suits in which there is dispute in respect of money claim.

It is worthwhile to refer to Rule 6F, O. 8, C.P.C. which reads:

Where in any suit a set-off or counterclaim is established as a defence against the plaintiff''s claim, and any balance is found due to the plaintiff or

the defendant, as the case may be, the Court may give jdgment to the party entitled to such balance.

Rule 19(1) of O. 20, C.P.C. is as follows:

Where the defendant has been allowed set-off (or counter-claim) against the claim of the plaintiff, the decree shall state what amount is due to the

plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.

In the instant case, even though on facts we came to the conclusion that the defendant has not put forward any counter-claim as contemplated

under O.8, R. 6A, C.P.C., we find that the relief for cancellation of the agreement in the case of breach of the agreement committed by the

defendant herself, is only in the nature of defence and that it would not amount to counter-claim. The ratio laid down in the decision of the Division

Bench of the Patna High Court would apply. The counterclaim is not maintainable. Further, there is absolutely nothing to show that court-fee has

been paid by the defendant for the counterclaim, even though it was brought to our notice that Rs. 10,002/- was deposited as per written

statement on 23-9-1980 is evidenced by the certified copy of chalan No. 1129, produced by the learned Counsel for the respondent. There is

also no decree passed in respect of the alleged counter-claim to the effect that the suit agreement is cancelled. On the other hand, the decree reads:

that the suit insofar as it relates to specific performance of the sale agreement prayed for by the plaintiff be and hereby is dismissed;

that the defendant do pay the plaintiff a sum of Rs. 35,000/- together with interest at 12 per cent, per annum from 6-12-1978 till realisation;

that the defendant do pay the plaintiff a sum of Rs. 10,000/- as damages and advance.

In the operative portion of the judgment also, the trial Judge has not stated that the defendant has filed counter-claim. The learned trial Judge

treated it as pleading and framed an issue and has not treated as a counter-claim. It has to be noted that the appellant has paid court-fee for the

main relief of specific performance of agreement of sale, which was negatived, as per the provisions of the Court-fees Act and she paid the same

court-fee on the appeal memo, which was paid on the plaint before the Court below. Therefore, we do not find any merit in the said contention

that there was a counter-claim and the counter-claim was decreed and that it has not been appealed. In this case, the finding of the trial Court in

respect of cancellation of the agreement had been challenged in ground Nos. 6, 10 and 13. In this connection, our attention was drawn to the

decision of this Court reported in T.K.V.S. Vidyapoornachary Sons and Others Vs. M.R. Krishnamachary, , where Balasubrahmanyan, J., while

considering the question whether the suit claim and counter-claim are to be regarded as single or separate proceedings, held as follows:

Order 8, Rule 6-A speaks of a counterclaim as a plaint in one place and as a cross-claim in another place. Nevertheless, in its most operative

provision, it lays down that the Court shall pronounce a single judgment in the suit, both on the original claim and on the counter-claim. The

susceptibility of a counter-claim to be dealt with in a single judgment along with a suit claim, runs counter to the idea of the two being regarded as

things apart. It is not merely that the Code provides for a single judgment to dispose of, at one stroke, the suit claim as well as a counter-claim, like

hitting two birds with one stone. But Rule 6-C specially lays down a special procedure to separate the suit claim from the counter-claim, wherever

the separation is called for. This provision emphasises by implication that as a general rule a suit claim and a counter-claim ought properly to be

regarded as constituting a unified proceeding. The rule, however, makes for an exception and it is this : should the plaintiff in a given case desire

that the counter-claim filed by the defendant in answer to his suit claim be dealt with as a separate suit in itself, he ought to apply for that relief

before the trial Court and it should be done before the issues are settled. On his application for amending his suit claim and the counter-claim, the

Court will have to consider whether the counterclaim should be dealt with as part and parcel of the suit or whether the defendant should be

referred to a separate suit. These exceptional provisions in Rule 6-C only illustrate the homogeneity of the suit claim and the counter-claim as a

single proceeding.

In whatever manner the Court disposes of a counter-claim, whether on the merits or ex parte, it cannot be separated from the disposal of the main

suit claim, but must be considered as being one with it. As a necessary corollary, where a defendant who has filed a counter-claim is set ex parte

and the judgment is pronounced in his absence, it would be an unnecessary refinement to split the decree into two, one as an ex parte decree so far

as the plaintiff''s suit claim is concerned, and the other as a dismissal for default so far as the defendant''s counter-claim is concerned. In truth, there

is but one judgment and that judgment happens to have been rendered ex parte.

In this case also, there is no such separate judgment and the alleged counter-claim has also been dealt with in the very judgment and no decision

has been rendered as if it was a counter-claim. There is nothing to show that the said contention of the defendant was treated as counter-claim

before the lower Court. It is only for the first time the learned Counsel for the respondent has come forward with this contention and we do not

find any merit in the same. The decision relied on by the learned Counsel for the respondent, namely, M. S. Miganed Jaffar v. M. S. Mohamed

Yahya, (1988) 102 MLW 36, has not considered this question and it is not helpful to the case of the respondent, as in that case admittedly there

was counter-claim by the second defendant in the suit. The second defendant objected to the withdrawal of the suit and the second defendant

sought transposition of himself as the plaintiff in the suit. The trial Court held that the plaintiff cannot withdraw the suit by making an endorsement

and he has to file an application and had adjourned the same. It was held :

The plaintiff being the dominus litus, has right to withdraw suit, at any stage of the proceedings. The application filed for transposition of the

second defendant as plaintiff, appears to be meaningless, because he is not seeking for the reliefs as prayed for by the plaintiff. The claims made by

him in counterclaims are totally different from what had been asked for by the plantiff. Hence, by transposition it would result in second defendant

being put to a predicament, particularly when he had sought for the removal of the plaintiff in the counter-claim. Hence, the application filed for

transposition runs counter to the counter-claim put forth by him. On this score itself, the trial Court ought to have dismissed that application.

While doing so, it was observed

In a suit in which counter-claim had been filed, by virtue of the amendment now enacted by Amendment Act, 1976, under O. 8, R. 6-D, CPC.,

even if the suit is dismissed, the defendant can pursue the counter-claim put forth by him.

Accordingly, the revision petition was allowed and the plaintiff was permitted to withdraw the suit. The trial court was directed to give a fresh

number to the counter-claim of the defendant and treat it as a suit filed by him. That decision is not at all relevant and helpful in deciding the issue

involved in this appeal, as in the above quoted case it was not disputed that the counter-claim was filed in the suit and the question was whether it

has to be disposed of separately in view of Order 8 Rule 6-D, C.P.C.

The trial court having observed that it is difficult to accept the contention of the learned counsel for the defendant that specific performance of

the contract should be refused merely because there had been an abnormal increase in the value of the property, that time is not the essence of

contract for sale in the case of immovable property, that mere delay does not by itself preclude the plaintiff from obtaining specific performance

and that the plaintiff had not committed breach of contract and she was not guilty of laches and delays, ought to have decreed the suit for the relief

of specific performance. As already observed, the default clause referred to in the agreement has not been properly interpreted by the trial court.

The trial court failed to note that in view of Section 23 of the Specific Relief Act and the decision referred to already, namely, V.K. Kandasami

Chettiar (since deceased) and Others Vs. Shanmugha Thevar and Another, , in spite of the default clause, the plaintiff is entitled to specific

performance of contract and the party in default cannot take advantage of his or her own wrong. Though the trial court has cited that decision, it

has not applied that decision to the facts of this case properly and because of the wrong appreciation of the recital in the default clause, the court

below has given a wrong finding. It is seen from the default clause that in the event of breach of contract, the defendant was liable to pay a total

sum of Rs. 10,002/- to the plaintiff and have the agreement cancelled. With regard to the plaintiff, it is provided that if the plaintiff commits breach

of agreement, she has to lose the advance amount of Rs. 5,001/- paid to the defendant. Even though the trial court has observed that damages are

seldom considered as a proper remedy for breach of an agreement to sell immovable property, yet relied on the clause in the agreement and came

to the conclusion that the defendant is entitled to cancellation of the agreement as a result of the deposit of Rs. 10,002/- as stipulated in the sale

agreement. The court below also observed that the plaintiff has paid a sum of Rs. 31,500/- towards the discharge of the mortgage and another sum

of Rs. 3,500/-besides the advance of Rs. 5,001/-, and in all paid Rs. 40,001/- to the defendant. The lower court is not justified in relying the

default clause in the circumstances of the case. Further, the court below is not justified in negativing the relief of specific performance, because the

defendant has not taken any steps to evict the tenant who was admittedly in occupation of a portion of the premises. As already observed, the

plaintiff can exercise the option even at the appellate stage and this has been done and has been accepted by us for the reasons already stated by

us. We have already held that the agreement is capable of enforcement and there is no question of impossibility in performing the agreement. The

lower court is not justified in holding that there is force in the contention of the learned counsel for the defendant that the agreement is also an

inchoate agreement which cannot be strictly enforced. There is no basis for corning to that conclusion. For all these reasons. We are of the view

that the plaintiff is entitled to the relief of specific performance of the suit agreement as prayed for. As regards possession, the defendant has to

deliver possession of the portion which was in her possession and she has to attorn the lease in favour of the plaintiff in respect of the portion in the

occupation of the tenant and that it is for the plaintiff to take necessary steps to evict the tenant. While doing so, it is open to the plaintiff to

challenge the tenancy which came into existence during the pendency of the proceedings and vacate the tenant in his possession.

In the result, the appeal is allowed, the decree and judgment passed by the court below are hereby set aside and instead, the plaintiff is granted

a decree for specific performance of the suit agreement of sale dated 23-10-1978 directing the defendant to execute a sale deed for Rs. 89,000/-

in favour of the plaintiff at her cost in respect of the suit property after receiving the balance of Rs.48,999/-. In default to execute the sale deed, the

plaintiff is at liberty to have the sale deed executed through the process of court. The defendant is directed to deliver vacant possession of the

portion in her occupation and in respect of the portion of which the tenant was inducted during the pendency of the proceedings, the defendant has

to attorn the lease in favour of the plaintiff and the plaintiff has to take necessary proceedings to vacate the tenant. If the balance of sale

consideration has not been deposited, the plaintiff is directed to deposit the same within two months from this date. However, in the circumstances

of the case, both the parties are directed to bear their respective costs throughout.

Appeal allowed.