R.M. Krishnan vs Dr. Azeeza Begum

Abdul Hadi, J.—Having failed in both the courts below, the defendant has filed this second appeal for specific performance of the sale

agreement dated 24-10-1980, Ex.A-1, with reference to the immovable property in question. Both the courts below have decreed the suit in

favour of the respondent/plaintiff, as prayed for. Only two submissions were made before me by the learned Counsel for the appellant. The first of

the submissions is that though originally the written statement proceeded on the footing that the defendant vendor had the absolute power to

alienate the property to any one, the defendant wanted to file I.A. No. 358/93 seeking leave of the lower appellate court, for filing additional

statement pleading that he could not convey title to the plaintiff, since the property was assigned to him by the Government on the basis that he was

a Harijan and as per the allotment-condition he should not alienate the land to any non-Harijan as the plaintiff. The Lower Appellate Court has

dismissed the said interlocutory application on the ground that the defendant could not take up an entirely different stand in the additional written

statement. Learned Counsel submits that the said dismissal is wrong.

I am unable to accept. The Supreme Court has held in Haji Mohammed Ishaq Wd. S.K. Mohammed and Others Vs. Mohamad Iqbal and

Mohamed Ali and Co., that the amendment of the written statement based on facts which were neither stated in the correspondence nor in the

written statement, to bring out a new plea was rightly rejected by the High Court. That is exactly so in the present case also. In the present case, it

is quite clear that the proposed defence that is sought to be taken up for the first time at the appellate stage would certainly convert the original

defence into another of a different and inconsistent character.

The next submission of the learned Counsel for the appellant is as follows:

The above said sale agreement provides for payment of damages in the event of default on the part of the defendant. So, according to him, specific

performance cannot be granted. He relied on Section 23 of the Specific Relief Act in this regard and also the decisions in M.L. Devender Singh

and Others Vs. Syed Khaja, and Prakash Chandra Vs. Angadlal and Others, -

I am unable to accept this contention also. Clause Nos. 10 and 12 of the sale agreement are as follows.

So, what could be gathered from the abovesaid clauses of agreement is that damage for default has been provided. But, Section 23(1) 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 an option of paying money in lieu of specific performance.

What the learned Counsel for the appellant emphasises is that as per Section 23(1) there is no finding by the courts below that, having regard to

the terms of the contract and other attending circumstances, it is satisfied that the sum stipulated in the contract as damages in the case of default,

was named for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying

money in lieu of specific performance. But, in the present case, it is clear to me that the defendant himself did not choose to invite the court to give

such a finding. Even in the written statement, all that is stated in this regard is only as follows:

As per the agreement I have to return the advance amount of Rs. 19,000/- with Rs. 5,000/- towards damages.

It is not mentioned in the written statement that only this remedy is available to the plaintiff and not the remedy of specific performance. The

evidence in this regard given by the defendant is also not brought to my notice. I have also put a question to the learned counsel for the appellant as

to whether he has raised this point as one of the appeal grounds before the first appellate court. But, the Counsel is not having the copy of the

grounds of appeal filed in the first appellate court.

Further, even in the above referred to M.L. Devender Singh and Others Vs. Syed Khaja, the Supreme Court has specifically held that mere

specification of a sum of money to be paid for breach in order to compel the performance of the contract does not by itself remove the strong

presumption contemplated under explanation (i) to Section 10 of the Specific Relief Act, in the case of immovable property. The said Explanation

runs as follows: -

Unless and until the contrary is proved the court shall presume:-

(i) that the breach of a contract of transfer immovable property cannot be adequately relieved by compensation in money"".

The Supreme Court has thus held that it is only when payment is an alternative to carrying out the other terms of the contract, it would exclude, by

the terms of the contract, specific performance of the contract to convey a property. Dealing with the facts of that particular case in the abovesaid

Supreme Court decision, it is stated as follows: -

There is no mention anywhere in the contract that a party to it will have the option to either fulfil the contract to buy or sell or to pay the

liquidated damages or penalty of Rs. 20,000/- stipulated for a breach, as an alternative to the performance of the contract to buy or to sell.

In the present case also, as I have already indicated, there is no mention in the above said sale agreement that the vendor therein will have the

option to either fulfil the contract to buy or sell or to pay the liquidated damages, as an alternative to the performance of the contract. The Supreme

Court has further observed as follows:-

The fact that the parties themselves have provided a sum to be paid by the party breaking the contract does not, by itself, remove the strong

presumption contemplated by the use of the words ""unless and until the contrary is proved."" The sufficiency or insufficiency of any evidence to

remove such a presumption is a matter of evidence. The fact that the parties themselves specified a sum of money to be paid in the event of its

breach is, no doubt, a piece of evidence to be considered in deciding whether the presumption has been repelled or not. But, in our opinion, it is

nothing more than a piece of evidence. It is not conclusive or decisive.

(Emphasis supplied)

The same proposition of law has also been reiterated in Prakash Chandra''s cafe (AIR 1979 SC 1241).The result is that I do not find any merit in

this second appeal. It does not involve any substantial question of law and hence this second appeal is not admitted, but dismissed. No costs.