Gujarat High Court

Premsinh Dalotsinh Chavda vs Ashokbhai Ramniklal Tolat on 18 December, 2023

Author: Biren Vaishnav

Bench: Biren Vaishnav

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 2388 of 2017
                                        With
                          R/CROSS OBJECTION NO. 66 of 2017
                                          In
                            R/FIRST APPEAL NO. 2388 of 2017
                                        With
                     CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
                         In R/CROSS OBJECTION NO. 66 of 2017
                                          In
                            R/FIRST APPEAL NO. 2388 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

and
HONOURABLE MS. JUSTICE NISHA M. THAKORE

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1     Whether Reporters of Local Papers may be allowed                      YES
      to see the judgment ?

2     To be referred to the Reporter or not ?                               YES

3     Whether their Lordships wish to see the fair copy                      NO
      of the judgment ?

4     Whether this case involves a substantial question                      NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                          PREMSINH DALOTSINH CHAVDA
                                    Versus
                      ASHOKBHAI RAMNIKLAL TOLAT & 1 other(s)
==========================================================
Appearance:
MR.PARTH CONTRACTOR(7150) for the Appellant(s) No. 1
for the Defendant(s) No. 2.1,2.2
DECEASED LITIGANT for the Defendant(s) No. 2
MR. JAIMIN R DAVE(7022) for the Defendant(s) No. 1
PRIYANK S DAVE(9465) for the Defendant(s) No. 1
SHIVAM D PARIKH(9477) for the Defendant(s) No. 1
==========================================================


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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
      and
      HONOURABLE MS. JUSTICE NISHA M. THAKORE

                          Date : 18/12/2023

                      CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. The First Appeal has been filed by the original

plaintiff and the cross objections by the original

defendant no.1. The appeal by the original

plaintiff challenges the legality and validity of the

judgement and decree dated 18.04.2017 passed

by the learned Principal Senior Civil Judge,

Ahmedabad (Rural) in Special Civil Suit No.201

of 2010, whereby, the said suit preferred by the

appellant has been partly dismissed qua the

relief seeking specific performance. However,

the suit is partly decreed whereby the appellant

is held entitled to recover an amount of

Rs.13,83,040/- as compensation for breach of

contract with interest @ 6% from the date of

filing of the suit till its realization. The appellant

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shall hereinafter be known as the plaintiff.

2. Cross-objections have been filed by the

defendant no.1, whereby, the suit has been partly

decreed and the objector - defendant no.1 has

been directed to pay compensation as aforesaid.

The cross-objector is the respondent no.1 in the

First Appeal, hereinafter to be referred to as 'the

defendant'.

3. The facts in brief are as under:

3.1 The plaintiff filed the Regular Civil Suit

against the defendant stating that the plaintiff

wanted to purchase ½ share of plot no.55 from

defendant which the defendant wanted to sell.

Accordingly, the defendant requested the society

to divide the plot into two parts so as to sell half

the portion admeasuring 500 square yards of the

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land with an old superstructure of bungalow

no.509. It was the case of the plaintiff that

negotiations and discussions went on for more

than six months and ultimately, the contract was

concluded orally on 26.01.2010, where, the

defendant agreed to sell one half share of the

plot for a total consideration of Rs.1.50 crores on

certain terms and conditions. According to the

plaintiff, he paid an amount of Rs.5 lakhs as

earnest money to the defendant by way of

cheque dated 26.01.2010 drawn on HDFC Bank

Ltd.

3.2 It is the case of the plaintiff that on

30.01.2010, for the division of the plot, an

application was made to the society by the

defendant. The defendant had to make payment

by way of maintenance charges of Rs.1,91,520/-

and the cheque for such amount was issued by

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the plaintiff which cheque was received by the

society along with the letter dated 11.02.2010.

3.3 The case of the plaintiff further was that a

form was issued by the society to be signed by

both the parties to issue two separate share

certificates. The form was filled up in the

society's office itself and the cheque was

prepared for an amount of Rs.2,50,000/- by the

plaintiff. However, since the signature of the

defendant no.2 was required in the form, the first

defendant did not return the form and thereafter,

telephoned the plaintiff that he is not interested

in the deal as the price of land has gone up. The

cheque was returned by the society as the form

was not complete. Based on the documents and

oral documents therefore, it was the case of the

plaintiff that when an oral contract was entered

into between the plaintiff and the defendant no.1

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and the plaintiff had paid Rs.5 lakhs by way of

cheque towards earnest money and the

defendant had applied for the split certificates

with a cheque of Rs.1,91,520/- the cause of

action has arisen to file the suit for specific

performance. Accordingly, the plaintiff prayed

for a decree of specific performance of the oral

agreement dated 26.01.2010 and in the

alternative, damages to the tune of Rs.10 lakhs

together with the amount of Rs.6,91,520/- was

already paid. In all therefore, alternatively

claimed Rs.16,91,520/- with running interest @

12%.

3.4 In response to the plaint, a written

statement was filed by the defendant, denying

such an oral agreement. It was his case that

there was no agreement for a transaction to sell

half the share. The request for issuance of

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splitting of share certificate was only with a view

to protect the interest of his wife. That the

amount of Rs.5 lakhs received by the defendant

was not as earnest money towards oral

agreement but as an interest free loan since the

bungalow needed renovation. So also the

amount of Rs.1,91,520/- was towards such loan.

It was the case of the defendant that he had

returned the amount of Rs.5 lakhs since the

estimate of renovations was beyond reach by

issuing a cheque dated 22.02.2010. No cheque

of Rs.2,50,000/- was prepared and given to the

society. The suit was therefore misconceived

and ought to be dismissed.

3.5 The Trial Court vide judgement and decree

dated 18.04.2017, held that the plaintiff was

entitled for compensation for breach of

agreement including amount of Rs.6,91,520/-,

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already paid by the plaintiff of the amount to pay

Rs.13,83,040/- as total compensation with

interest @ 6%.

4. Mr.Parth Contractor learned advocate appearing

for the appellant made the following

submissions:

4.1 That the Trial Court ought to have exercised

discretion in favour of the plaintiff in passing a

decree of specific performance as prayed for as

there was no impedement to grant such relief.

4.2 That on the basis of the negotiations held on

26.01.2010, by way of an oral agreement, the

defendant no.1 had agreed to sell half portion of

the plot for a total consideration of

Rs.1,50,00,000/-. The agreement was on certain

conditions. Earnest money of Rs.5 lakhs by way

of a cheque for the amount was admittedly paid

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to the defendant no.1 and the defendant no.1 had

encashed the same. Before the Trial Court, the

cheque was exhibited at Exh.56 and the

statement of accounts at Mark-46/3 of the HDFC

bank showed an entry of debiting of the

plaintiff's account in favour of defendant no.1 on

01.02.2010.

4.3 In light of the averments made in the plaint,

that necessary formalities would be undertaken

with the society to split the plots on 30.01.2010,

the defendant no.1 applied to the society for

division of the plot. The applications so made

were at Exh.64 and Exh.105 respectively.

4.4 On 06.02.2010, the plaintiff had addressed a

letter to the society along with the cheque of

Rs.1,91,520/- towards the payment of the

maintenance charges of the bungalow. On

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08.02.2010, a transfer form with respect to plot

no.509A signed by the plaintiff without the

signature of the defendant and a cheque of

Rs.2,50,000/- was also sent across. These

documents are at Exh.65 and 66 respectively.

The society subsequently returned the cheque as

the letter was not signed by the defendant no.2.

4.5 Mr.Parth Contractor would rely on letters at

Exh.79 and 106 respectively dated 11.02.2010

where the defendant no.1 made an application

enclosing a cheque of maintenance requesting to

expedite issue of two share certificates, which

according to the learned counsel was proof

enough to indicate the intention of the plaintiff to

purchase the plot in question. On 22.10.2010,

the son of the plaintiff wrote to the defendant

no.1 that the plaintiff intended to pursue the

deed to which the defendant no.1 by an SMS

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responded that they may not. These documents

are at Exhs.72 and 73 respectively.

4.6 It was further submitted by the learned

counsel for the plaintiff-appellant that the

plaintiff was ready and willing and had the ability

to make payments, is evident from the income

tax returns of the plaintiff from AYs 2009-10 to

2013-14 at Exhs.59 to 63 and from the plaintiff's

cross-examination at Exh.51.

4.7 Mr.Contractor would further submit that

once the sale consideration was agreed upon and

earnest money and maintenance charges were

deposited and all the issues were proved in

favour of the plaintiff, discretion ought to have

been exercised in favour of the plaintiff in

granting the decree of specific performance.

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4.8 Placing reliance on the provisions of the

unamended section 20 of the Specific Relief Act,

Mr.Contractor would submit that the exceptions

carved out in sub-section (2) of Section 20 were

not attracted so as to deny the discretion by the

Court to grant the relief of specific performance.

He would submit that sub-section (4) of Section

20 mandates that the Court shall not refuse

specific performance of a contract merely on the

ground that the contract is not enforceable at the

instance of the party.

4.9 That the impugned judgement is erroneous

and contrary to Section 20 of the Specific Relief

Act. In support of his submission, Mr.Contractor

would rely on the following decisions as far as

Section 20 is concerned:

     I.          K.   Nanjappa        (DEAD)         BY         LEGAL
     REPRESENTATIVES versus                    R.A.        HAMEED





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     ALIAS       AMEERSAB            (DEAD)              By         Legal
     Representatives      and            another        reported             in
     (2016) 1 SCC 762


     II.     K. Prakash v. B.R. Sampath Kumar
     reported in (2015) 1 SCC 597


     III. Dhansukhlal          Rambhai                Patel             and

Another v. Dhansukhlal Nagindas Kapadia rendered in Second Appeal No.42 of 1990

IV. Robert D' Silva v. Roshini Enterprises and another reported in 1986 SCC OnLine Kar 3

V. Silvey and others v. Arun Varghese and another reported in (2008) 11 SCC 45

VI. Beemaneni Maha Lakshmi v.

Gangumalla Appa Rao (SINCE DEAD) BY

LEGAL REPRESENTATIVES reported in (2019) 6

SCC 233

VII. Zarina Siddiqui v. A. Ramalingam ALIAS R. AMARNATHAN reported in (2015) 1 SCC

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VIII. Premsinh Dalotsinh Chavda v. Ashokbhai R. Tolat & Ors. rendered in First Appeal No.2388 of 2017

4.10 As far as the finding of the Trial Court in

respect of provisions of Section 14(1)(b) and

14(1)(c) of the Act is concerned, he would assail

the findings of the Trial Court and submit that

the contract is not dependent on personal

qualifications or volition of the parties. He would

rely on the decision in case of Robert D'Silva v.

Roshini Enterprises reported in AIR 1987

KAR 57.

He would submit that in view of Explanation

(i) of Section 10, unless and until contrary is

proved, the Court shall presume that the breach

of a contract to transfer removable property

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cannot be adequately relieved by compensation

of money.

4.11 That an oral agreement can always be

enforced as it is enforceable. Once a concluded

contract is proved as was in the present case,

specific performance must follow. He relied on

the decision in case of K. Nanjappa (supra).

4.12 With regard to the conduct of the defendant,

he would submit that the defendant had backed

out and therefore, while weighing the question of

exercise of discretion, such conduct could not be

ignored.

5. Mr.Jaimin Dave learned advocate appearing with

Mr.Priyank Dave and Mr.Shivam Parikh learned

advocates appearing for the defendant no.1-

cross-objector would make the following

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submissions:

5.1 Relying on the relevant factors of the case,

he would submit that the defendant is 97 years

old today and resides with his wife and does not

have any other residential accommodation.

5.2 The defendant obtains estimate for

renovation of the house from one Thakkar and

Associates and the estimate is of Rs.28 lakhs,

and Exhs.113 to 116 prove that. The plaintiff

offered an interest free loan of Rs.5 lakhs which

the defendant accepted. It was true that an

application was made for a split certificate on

30.01.2010 but Exh.64 produced by the plaintiff

is interpolated whereas Exh.105 has been

produced by the Secretary of the society.

5.3 Mr.Dave would submit that the whole story

of signing of letters dated 06.02.2010 and

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08.02.2010 to the society requesting for issuance

of share certificates are not proved inasmuch as,

for the period from 31.01.2010 to 11.02.2010,

the defendant no.1 was traveling to Mumbai

which fact is evident from the toll receipts

brought on record from the suit at Exhs.118 to

132. He would submit that different versions

came out from the versions made in the plaint

inasmuch as, at one stage, it was the case of the

plaintiff that the defendant backed out on

09.02.2010, whereas, in the other part of the

plaint, it appears that the same has happened in

March 2010.

5.4 Mr.Dave would submit that there was no

concluded contract between the parties. Adding

to this, he would submit that there is no dispute

with the proposition that there can be an oral

agreement to sell. However, a contract, an oral

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particularly, can only be termed to be concluded

when parties are ad-idem to the extent that all

necessary and vital terms are agreed and written

agreement is only a formality. He would submit

that there is nothing on record to suggest that

there was a concluded contract as no price was

agreed upon.

5.5 In support of his submissions, Mr.Dave

would rely on the following judgements:

(i) Brij Mohan v. Sugra Begum, (1990) 4 SCC 147

(ii) K. Nanjappa [Dead] by Legal Representative v. R.A. Hameed, (2016) 1 SCC 762

(iii) Patel Rameshbhai Dahyabhai v.

Patel Pranav Kiritbhai, (2015) 2 GLR

(iv) V.R. Sudhakara Rao v. T. V.

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Kameshwari (2007) 6 SCC 650

5.6 Mr.Dave further submitted that even if there

is a concluded contract, the contract could not

have been specifically enforced in view of

Sections 14(1)(a), (b) and (d). The plaintiff

himself had asked for an alternative relief for a

compensation in light of provisions of Section

14(1)(b) of the Act, since the contract would run

into minute details and would require

supervision, it could not be specifically enforced.

Issuance of split certificate, division of plots,

demotion of bungalow, would require continuous

duty of the Court which it cannot supervise and

therefore no specific performance was possible.

5.7 Mr.Dave would further submit that

according to Section 20 of the Specific Relief Act,

specific performance is discretionary and Court

is not bound to grant such a relief. Provisions of

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Section 20 would override provisions of Section

10 of the Act in light of the language of Section

10. The positive obligation under Explanation to

Section 10 of the Specific Relief Act is

subservient to Section 20 and the Court can

refuse to pass a decree of specific performance.

The present is such case. Reliance is placed on

the decision in case of Shanker Singh v.

Narinder Sing reported in (2014) 16 SCC 662.

5.8 He would therefore submit that the finding

in the judgement where the contract is

concluded is required to be quashed.

5.9 Reading paragraphs 29 and 30 of the

judgement Mr.Dave would submit that even the

judgement insofar as it awards damages,

requires to be set aside. The defendant had

offered the cheque which was deliberately not

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encashed. He had even indicated his readiness

and willingness to deposit the entire sum of

Rs.6,91,520/- . These factors ought to have been

taken into consideration.

5.10 Mr.Dave would submit that even otherwise

the plaintiff himself had accepted compensation.

He would therefore submit that the judgement

and decree awarding compensation must be set

aside.

6. In rejoinder to Mr.Dave's submission,

Mr.Contractor would rely on the cross-

examination of the defendant to submit that he

had admitted that the letter dated 30.01.2010

was written for the purposes of sell. The

ingredients of Section 10 of the Contract Act

does not satisfy and the First Appeal therefore

must be allowed and the cross-objections must

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be dismissed.

7. Having considered the submissions of the

respective advocates, this Court will have to

consider whether the judgement and decree

rendered by the Trial Court and the findings

arrived by it are based on correct appreciation of

evidence and the law.

7.1 As we have seen, the case of the plaintiff is

for specific performance of an oral agreement

dated 26.01.2010 for purchase of a half portion

of the plot i.e. 500 sq. yards, of the total of 1000

sq. yards, from the defendant no.1 for a total

consideration of Rs.1,50,00,000/-. As per the

plaint, in the negotiations prefacing the oral

agreement of 26.01.2010, it was agreed by and

between the plaintiff to purchase, and the

defendant no.1 to sell the plot with the bungalow

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for the total consideration on the terms set out in

the plaint as under:

(i) The defendant no.1 shall make an

application to the society to divide plot no.55

into two sub-plots along with two separate

share certificates.

(ii) Sale price of the half plot shall be

Rs.1.50 crores.

(iii) The defendant agreed to submit all

documents pertaining to suit property to the

plaintiff.

(iv) After verification of the title clearance

certificate, the sale deed was agreed to be

extended in favour of the plaintiff by the

defendant against payment of remaining

consideration. It was agreed that it would be

executed in March 2010.

(v) The plaintiff had to bear all expenses of

the document.

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7.2 In substantiating this set of events and the

course of action i.e. backing out by the defendant

no.1 from this agreement, oral and documentary

evidence has been led by the plaintiff. The case

of the defendant has been that no application

was made for issuance of split certificates. That

the earnest money that the plaintiff asserts as

payment of Rs.5 lakhs, was an interest free loan

which was repaid by way of a cheque, which the

plaintiff did not deposit. That no application

could have been made for splitting of plots on

06.02.2010 and 08.02.2010 as the defendant

no.1 was in Mumbai from 30.01.2010 to

11.02.2010 for which toll receipts are produced.

That Rs.1,91,520/- was also agreed to be

returned. There was an intention to renovate the

bungalow for which the loan was taken from the

plaintiff which was sought to be returned as the

estimate for renovation given by Thakkar

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Associates was too expensive and beyond reach.

7.3 Appraisal of evidence on part of both sides

has been considered by the Trial Court and

issues have been framed.

7.4 On the issue whether the plaintiff proves

that an oral concluded contract of sale of the suit

property did exist, the trial court found that the

defendant did receive an amount of Rs.5,00,000/-

and the maintenance charges of Rs.1,91,520/- as

an event of oral agreement and not as an interest

free loan. Reading of the deposition of the

plaintiff indicates that he confirms the narrative

in the plaint by stating that as a precursor to

arriving at an oral agreement to contract the sale

on 26.01.2010, negotiations were under way for

over past six months. That on applications and

further execution of formalities with the society,

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the contract would be final. The documentary

evidence would indicate the following sequence

of events:

(I) On record to support the stand of

payment of earnest money of Rs.5,00,000/-

is a cheque dated 26.01.2010 at Exh.56

supported by a bank statement at Mark 46/3

showing that the amount has been paid to

the defendant no.1. This amount by way of

cheque of the date of the oral agreement as

pleaded in light of subsequent evidences

clearly indicate that the intention of the

plaintiff to proceed further with the oral

agreement. The readiness and willingness

as well as ability to make relevant payments

has been supported by the plaintiff through

documentary evidence in the form of Income

Tax Returns at Exh.59 to 63, coupled by his

oral deposition at Exh.51 that his annual

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income is more than Rs.2 crores. Mr.Dave's

submission that there was no concluded

contract as parties were not ad-idem to the

extent that making of a written agreement

was a formality, may be considered in light

of this evidence. That there is nothing on

record as per his submission on the

agreement with respect to date of

possession and price is also to be dealt with.

In light of the obligations averred in the

plaint, it has come on record that cheque of

earnest money, application to get split

certificates accompanied by a cheque of

maintenance charges issued by the plaintiff

and the cheques having been deposited with

a clear assertion of undertaking the sale

deed in March 2010 are pointers to parties

being ad-idem. The letter under the

signature of defendant no.1 of 11.02.2010

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and accompanied by a cheque of

maintenance charges under the signature of

plaintiff and issued by the plaintiff in the

background of the defendant's depositing

earnest money are signs and steps which led

to a concluded conflict and the issue no.1

decided by the Trial Court was decided so,

in our opinion, rightly so. The decisions

relied upon by Shri Dave in the case of (I)

Brij Mohan (supra), (ii) K. Nanjappa

[Dead] (supra), (iii) Patel Rameshbhai

Dahyabhai (supra) and (iv) V.R.Sudhakara

Rao (supra) cannot be disputed but the facts

do indicate that what can be seen from the

evidence on record is that there was a valid

and an enforceable contract and there was

an obligation arising out of it for the

defendant no.1.

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(II) On 30.01.2010 i.e. within three days of

the date of 26.01.2010, the date of oral

agreement mentioned in the plaint and the

deposition, a letter was addressed by the

defendant no.1 to the society for division of

plot into two sub-plots. The documents,

both of even date and similar are on record

at Exh.64 and Exh.105. The defendant has

disputed the veracity of Exh.64 where

according to him details of parties to the

litigation are interpolated, however, the

document identical without interpolation is

produced by the society at Exh.105, a letter

indicating the wish of the defendant no.1 to

divide plots.

(III) There are letters dated 06.02.2010 and

08.02.2010, one addressed to the society by

the plaintiff along with cheque of

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Rs.1,91,520/- towards maintenance charges.

The letter dated 06.02.2010 is not exhibited.

The letter dated 08.02.2010 at Exh.65 does

bear the plaintiff's signature but does not

bear the signature of defendant no.1 and his

broker defendant no.2 and the defendant

has disputed the existence and the case of

the plaintiff is that the defendant no.2 did

not sign. Along with the letter of

08.02.2010 is a cheque of the plaintiff of

Rs.2,50,000/- no.494840 towards transfer

fee. Though the defendant no.1 has

disputed the letters dated 06.02.2010 and

08.02.2010 which we may therefore not

consider based on his version of being out of

Ahmedabad to Mumbai and his return on

11.02.2010, what unmistakenly strikes to

believe the version of the plaintiff that even

the maintenance charges were borne by him

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so as to enable to get split certificates is

letter dated 11.02.2010 at Exh.79 and

Exh.106 which under the signature of the

defendant requests the society for issuance

of a split certificate and what is enclosed is

cheque no.494838 dated 06.02.2010 issued

by the plaintiff. This cheque is at Mark 46/3.

The version that both these amounts i.e. of

Rs.5,00,000/- and Rs.1,91,520/- were

towards interest free loan, though sought to

be supported by documents of estimates of

renovation given by Thakkar Associates at

Exh.113 to 116 are not supported by any

oral evidence and therefore in our opinion

the issue that there was a concluded

contract has rightly been decided by the

Trial Court.

7.5 The issue Nos.2 and 3 whether the plaintiff

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has proved that Rs.5,00,000/- was paid towards

earnest money and that Rs.1,91,520/- towards

maintenance dues is also proved by way of the

documents, which we have discussed while

deciding issue no.1. The cheque dated

26.01.2010 at Exh.56 is deposited in the

defendant no.1's account. Cheque of

Rs.1,91,520/- with the letter of 11.02.2010, the

cheque dated 06.02.2010 is also accepted by the

society. The Trial Court, as discussed above, has

disbelieved these amounts to be towards interest

free loans and hence in our opinion, issues nos.2

and 3 are also rightly decided.

7.6 The issue no.4 on whether the plaintiff is

ready and willing to perform his part is also

embedded in the reasoning which we have

advanced for issues 1, 2 and 3 and therefore no

separate reasons be assigned thereof.

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7.7 Issue no.6 pertains as to whether the

defendant proved that he had obtained a loan for

Rs.5,00,000/- for repairing. The Trial Court held

against the defendant. That also as discussed

above except for documents at Exh.113 to 116

being estimates of renovation, documentary

evidence has not been supported by any other

evidence of the Architect or professional to

support such estimates and the Trial Court has

therefore rightly held against the defendant no.1.

7.8 Extensive arguments based on these

findings on issue nos.5 and 7 were made by both

the respective counsels by taking us through the

provisions of Sections 10, 14 and 20 of the

Specific Relief Act.

7.9 Section 20 (pre-amended) of the Specific

Relief Act deals with discretion to grant a decree

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of specific performance. Cases are set out in

sub-section (2) from (a) to (c) where the Court

would not grant such a decree. Section 20(4)

may mandate specific performance.

7.10 Mr.Dave would submit that Section 20 is

subsequent to Section 10 and when

circumstances exist, decree of Specific

Performance can be refused. Section 14 deals

with contracts which cannot be specifically

enforced.

7.11 In the facts of the present case whether the

Court has rightly exercised the discretion under

Section 20 coupled with Section 14, has to be

seen. As held in the case of K. Nagappa (supra)

there can be no dispute that a decree of specific

performance can be granted on the basis of an

oral contract. The discretion of the Court is

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guided by judicial principles of law. It has to be

exercised keeping in view principles set out in

Section 20. Can we, in the facts of this case,

hold that while refusing to grant a decree of

specific performance, the Trial Court has

committed a manifest illegality ? Our answer has

to be guided even based on the admitted

alternative prayer made by the appellant-plaintiff

in the suit itself where he has also claimed

damages. The plaintiff-appellant once having

made an alternative prayer for damages and

compensation may have a weaker foundation to

assail the discretion under Section 20 to mandate

specific performance. Section 14(1) has been

pressed into service by the counsel of the

defendant to support refusal of specific

performance. We would refrain from opinion on

the issue whether the Trial Court's findings on

denial to enforce specific performance was

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justified invoking Section 14 was right because

of the alternate finding that is answered on

damages. This is on two counts; firstly, reading

Section 21 of the Specific Relief Act deals with

the power of the Court to award compensation in

certain cases. The award of compensation too is

assailed by the defendant on the ground of the

defendant's readiness and willingness to return

the amount paid by the plaintiff. Even as per

Section 10 (unamended), a contract for specific

performance in the discretion of the Court may

be enforced where there exists no standard of

ascertaining actual damage. This is not a case as

such. On his own volition the plaintiff has made

an alternative prayer. Moreover, we have

affirmed the finding of the Trial Court in holding

that there was a concluded contract. Even the

decision of the Supreme Court in the case of

V.R.Sudhakara Rao (supra) in paras 12 to 16

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has held as under:

"12. The High Court held that the evidence is not of a very clear proof. The payment of advance amounting to Rs.16,575/- was established. Therefore, the alternative relief in favour of plaintiff in OS No. 350 of 1982 i.e. refund of Rs.16,575/- with interest at the rate of 12% p.a. from the date of payment of the amount till the date of realization, was granted. It was directed that there shall be a charge over the plaint schedule for realization of the said amount. So far as the other suit is concerned, it was held that the suit OS No. 350 of 1982 for the relief of specific performance was to be decreed to that extent. The plaintiff in OS No.131 of 1982 was entitled to the decree of possession and ancillary reliefs. Appeal was accordingly disposed of.

13. In support of the appeals, learned counsel for the appellant submitted that the ordinary rule is that the prayer for specific performance of the agreement is to be granted and only on equitable considerations the same can be refused. Reliance is placed in this context on Prakash Chandra v. Angadlal and Others [1979(4) SCC 393]. Though there was no direct evidence, other evidence taken note of by the trial court should not have been lightly brushed aside by the High Court and therefore the alternative relief should not have been granted and the main relief prayed for should have been granted. The effect of the Section 53(A) of the Transfer of

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Property Act, 1882 (in short the 'T.P. Act') has not been taken note of.

14. There is no appearance on behalf of the respondent though counter affidavit has been filed.

15. First it would be necessary to deal with the effect of Section 53(A) of the T.P. Act. It is fairly accepted that in the case of an oral agreement of sale the defence under Section 53(A) of the TP Act is not available to a party who alleges to be in possession of the property.

16. The High Court has rightly concluded that there is no clear proof relating to the other terms of condition. The relief of specific performance is discretionary relief and except the oral evidence, there is no clear evidence to prove several of the essential terms which have been taken note of by the High Court. The High Court, on analyzing the evidence, has come to hold that except Exhibit B-1 and the oral evidence of DW 1 and DW2, there is no other clear proof relating to the other terms and conditions of the contract which can be termed as essential conditions like delivery of possession and also the obtaining of permission from the Urban Land Ceiling Authorities and therefore, it cannot be said that all the essential terms and conditions of a well concluded contract had been established in the case at hand."

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7.12 Even in the discussion in dealing with

Sections 14(1)(b) and 20, the Supreme Court in

the case of Shanker Singh held as under:

"24. In this connection, we may refer to the relevant provisions of the Act. Section 12(3) of the Act permits a party to an agreement to relinquish a part of the agreement which is not enforceable. However, it should be possible to identify and demarcate that part of the agreement which is not to be enforced. We must also keep in mind the provision of Section 14 of the Act which deals with contracts which are not specifically enforceable, and Sub- Section 1

(b) thereof includes therein a contract which runs into minute and numerous details, as is seen in the present case.

25. In this connection, we must as well refer to Section 20 (1) of the Act which reads as follows:-

"Section 20. Discretion as to decreeing specific performance - (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal."

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26. Damages and specific performance are both remedies available upon breach of obligations by a party to the contract. The former is considered to be a substantial remedy, whereas the latter is of course a specific remedy. It is true that explanation

(i) to Section 10 of the Act provides that unless and until the contrary is proved, the Court shall presume that breach of contract to transfer immovable property cannot be adequately relieved by compensation in money. However, this presumption is not an irrebuttable one. That apart, for a specific performance of a contract of sale of immovable property, there must be certainty with respect to the property to be sold.

27. As held by this Court in para 18 of Mayawanti Vs. Kaushalya Devi reported in 1990 (3) SCC 1 :-

"18. The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for

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there was no contract at all............."

28. Mr. Vishwanathan, learned senior counsel for the respondents submitted that the relinquishment of a part of the agreement was permissible. As far as the propositions of law concerning relinquishment as canvassed by the respondents are concerned, there is no difficulty in accepting the same. However, the relinquishment has to be unambiguous.

29. As held by this Court in Surjit Kaur Vs. Naurata Singh reported in 2000 (7) SCC 379, the party seeking part performance must unambiguously relinquish all claims to performance of remaining part of the contract. In the present case the offer of relinquishment by the respondents cannot be said to be an unambiguous one, and it will be difficult to decide as to which portion of the land is to be segregated to be retained with the appellant, and which portion is to be sold. Firstly, this is because as rightly noted by the Additional District Judge, the agreement does not specifically mention the price of the land, and in the proposed relinquishment, the respondents have not stated as to which portion of land (admeasuring 1 Kanal and 19 Marlas) they were agreeable to retain with the appellant. Secondly, in the agreement there is also a mention of `a motor, bore, passage, fan and water pump fitted with engine and without engine along with the place for placing garbage including shamlat' amongst the properties which were being sold. It is not on record as to which parcel of land is

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having all these features. A question will therefore arise as to with whom such a parcel of land is to be retained. Obviously, a segregation of the land in dispute into two portions will be difficult.

30. In the present case there is one more difficulty viz. with respect to the relinquishment concerning the house. The First Appellate Court had categorically observed in para 6 of its judgment as quoted above, that the brother of the appellant, Puran Singh appeared to be the owner of the other = share of the house, and the remaining = share was in the name of Pritam Kaur, and that Shanker Singh did not have any authority to sell it. The judgment of the High Court does not show that this finding had been challenged in the Second Appeal. Nor was any submission made in this behalf before this Court. What the respondents offered was to give up the claim for the share of Pritam Kaur, and also the claim for the excess land of 1 Kanal and 19 Marlas which was accepted by the High Court in its impugned judgment. The respondents, however, claimed to retain the alleged = share of Shanker Singh, as can be seen from the order dated 19.10.1983 which is passed at the time of admission.

31. Thus, the respondents made a statement at the admission stage that they were ready to pay the full consideration for the land as stipulated in the agreement, and for the share of Shanker Singh in the house. This order dated 19.10.1983 records that the respondents were ready to give up their

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claim for = the share of the house owned by Pritam Kaur, but maintained the claim for the share of Shanker Singh in the house. As against that it appears from the judgment of the First Appellate Court, that Shanker Singh did not have any such share in the house. His wife had = share, and his brother Puran Singh had = share. In the teeth of this finding of the First Appellate Court, which is neither challenged nor reversed by the High Court, the proposed relinquishment cannot be said to be a correct and unambiguous one. It does not alter the scenario and the agreement continues to remain incapable of performance. In any case it is not clear as to how such an agreement could be acted upon.

32. Therefore, for the reasons stated above, we have to hold in the peculiar facts and circumstances of this case that inspite of the offer of relinquishment made by the respondents herein, the specific performance of the agreement cannot be granted, solely on the ground that it is incapable of being performed. We have also to hold that the High Court erred in applying the provisions of Sections 12, 14 and 20 of the Act to the facts of the present case and in exercising its discretion, since this was not a case for specific performance. We have therefore to allow this appeal and set-aside the order passed by the High Court in Regular Second Appeal No. 1338 of 1983. The suit filed by the respondents will have to be dismissed.

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33. We have however to note that the respondents had paid the earnest money of Rs. 28,000/- at the time of entering into the agreement way back on 12.1.1977 i.e. nearly 35 years ago. The respondents will therefore have to be compensated adequately.

34. On the question of the appropriate compensation, it was submitted by Mr. Venktaramani, the learned senior counsel for the appellant that the agreement was made at a difficult time in the social life of Punjab for a throw away price. However, no evidence is placed on record to that effect. He then pointed out that the appellant had contended in the lower courts that respondents were influential people. Even so, it cannot be ignored that inspite of the agreement, the land has remained with the appellant all through out in view of the orders passed by the courts from time to time, due to which he has benefited. The specific performance of the agreement is being denied basically because of the finding that the agreement was incapable of being performed inspite of the offer of relinquishment.

35. It is an adage that money doubles itself in ten years, and on that basis the amount of Rs. 28,000/- with an appropriate interest will come to at least Rs. 3,50,000/-. If the land was with the respondents, they would have earned much more. Having seen this position, Mr. Venktaramani has fairly left it to the Court to decide an adequate amount to be paid to the respondents by way of

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compensation and in lieu of specific performance of the concerned agreement. Accordingly, having considered all the relevant aspects, we are of the view that to meet the ends of justice, the appellant should be directed to pay the respondents an amount of Rs. 5,00,000/- which will be inclusive of the earnest money with due return thereon, and compensation.

36. We, therefore, allow this appeal and set- aside the judgment and order dated 8.4.2003 passed by the High Court in Civil Regular Second Appeal No.1338/1983, as well as the one dated 20.2.1980 rendered by the Sub Judge at Sultanpur Lodhi in Suit No.21/1978. The suit shall stand dismissed. There will be no order as to costs. However, the appellant is hereby directed to pay an amount of Rs. 5,00,000/- to the respondents which amount shall be paid in any case by the end of March, 2012."

8. Having affirmed the findings on the issues raised

by the Trial Court and also confirmed the

findings on compensation, we see no reason to

interfere with the findings of the Trial Court. The

judgement and decree dated 18.04.2017 passed

by the learned Principal Senior Civil Judge,

Ahmedabad (Rural) in Special Civil Suit No.201

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of 2010, are upheld.

9. The First Appeal and Cross-objections are