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Gopi Nath Sen and ors. Vs. Bahadurmul Dulichand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 157 of 1973
Judge
Reported inAIR1979Cal203
ActsSpecific Relief Act, 1968 - Sections 21(2), 24 and 73; ;Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantGopi Nath Sen and ors.
RespondentBahadurmul Dulichand and ors.
Appellant AdvocateP.K. Sen and ;Pinaki Ghose, Advs.
Respondent AdvocateP.K. Das, Adv.
DispositionAppeal allowed
Cases ReferredRajendra Nath Saha v. Saraswah Press Ltd.
Excerpt:
- ramendra mohan datta, j. 1. it is settled law that the plaintiff in a suit for specific performance must be ready and willing to perform his part of the contract not only up to the date of the suit but at least upto the completion of the trial.2. in this case of specific performance in course of the trial dulichand a partner of the respondent firm in course of bis examination in chief as a witness on behalf of the plaintiff was asked in question 71 as follows :--q. 'are you still ready and willing to take the lease from the defendant?' his answer was: 'no. at present we claim the damage only'. the question arose if this was permissible under the law. could the plaintiff have waived or abandoned the claim for specific performance and claimed damages simpliciter in lieu thereof? such a.....
Judgment:

Ramendra Mohan Datta, J.

1. It is settled law that the plaintiff in a suit for specific performance must be ready and willing to perform his part of the contract not only up to the date of the suit but at least upto the completion of the trial.

2. In this case of specific performance in course of the trial Dulichand a partner of the respondent firm in course of bis examination in chief as a witness on behalf of the plaintiff was asked in question 71 as follows :--

Q. 'Are you still ready and willing to take the lease from the defendant?' His answer was: 'No. At present we claim the damage only'. The question arose if this was permissible under the law. Could the plaintiff have waived or abandoned the claim for specific performance and claimed damages simpliciter in lieu thereof? Such a question arose in the case of Ardeshir Mama v. Flora Sassoon 55 Ind App 360; (AIR 1928 PC 208). In that case also the plaintiff by his conduct debarred himself from the relief of specific performance and tried to convert the suit for specific performance into that of a suit for damages. The question is: has the plaintiff such power to convert the suit for specific performance into that of a suit for damages simpliciter.

3. In my opinion, the principle under which damages will be awarded under Section 73 of the Indian Contract Act will be different from the principle involved in damages which will be awarded in lieu of specific performance. In the case of damages in lieu of specific performance the same does not result directly or consequentially from out of a breach of a contract as is the cask under Section 73 of the Indian Contract Act. There might be circumstances when the plaintiff might be entitled to specific per-formance but the Court in its discretionmight find that in the special facts of the case the plaintiff should not be awarded specific performance of the contract; but if damages would be awarded in lieu or in substitution thereof then that would amount to granting of a suitable relief. In other words the Court must be in a position to consider that the plaintiff was otherwise entitled to claim specific performance. If that condition would not be fulfilled then there could be no question of the court's exercising that power of granting relief by way of damages in lieu thereof. The expression 'in lieu of specific performance' means and signifies that the relief by way of damages is granted in place of specific performance or in substitution thereof so that adequate relief might be awarded to the plaintiff who was otherwise entitled to such specific performance. Once the plaintiff would abandon his case of specific performance then that would be an end of the matter so far as the relief by way of damages in lieu of specific performance was concerned. As observed herein above, he must not only be ready and willing to perform his part of the contract up to the date of the filing of the suit but also during the continuance thereof so that the Court would be in a position to consider the case of granting relief by way of damages in lieu of specific performance even at the time of the passing of the decree.

4. It is to be remembered that the question of granting relief by way of damages in lieu of or in substitution of specific performance is a matter resting entirely with the Court and parties have nothing to do with it. The plaintiff cannot be allowed to abandon the case for specific performance and yet claim damages in lieu thereof as they have purported to do here. If the plaintiff has to choose his course of action then that must be done at the initial stage. He must decide once for all whether he was to pursue his remedy by claiming specific performance in which case he must satisfy the Court till the hearing is concluded and the Judgment is delivered that he wanted specific performance. In such circumstances only it is a matter for the Court to consider in a proper case whether or not damages in lieu of specific performance was to be allowed.

If the plaintiff would so choose to abandon his claim for specific performance and to pursue his claim for damages simpliciter then that must be done before the trial begins. If he asks for amendment of the plaint by abandoning the case of specific performance he cannot be allowed to do soin the midst of the trial and to claim damages in lieu of specific performance.

5. Mr. P. K. Das appearing on behalf of the plaintiff respondent referred to the case of Rajendra Kumar Saha v. Saraswati Press Ltd. AIR 1952 Gal 78 in which P. B. Mukharji J. (as he then was) allowed the amendment so as to convert the case for specific performance into that of a suit for damages simpliciter. That case is distinguishable from the facts of the case before us. In that case before the trial began the plaintiff applied for amendment. There the property in suit had been requisitioned by the Government pending the suit with the result that the plaintiff himself could no longer specifically perform the agreement to convey the property. There the plaintiff was the seller. The defendant buyer agree to purchase the same at a sum of Rs. 2,30,000/-. Originally there was ho pleading for damages for breach of contract but there was a claim for compensation in addition to or in substitution of the claim for specific performance. By amendment the plaintiff was asking for deleting the averment of readiness and willingness and to delete the claim for specific performance. The result, therefore, was that the suit after amendment was to be a suit for damages simpliciter. In my opinion, different considerations arose there and the amendment was allowed in that case because of the special circumstances. Before P. B. Mukharji J. the amendment was asked for in a vendor's suit but the consideration before the Privy Council in Mama v. Sassoon (AIR 1928 PC 208) (Supra) was in respect of a purchaser's suit,

6. In this case DO amendment has been sought for at any stage of the proceeding and, accordingly, the decision in Rajendra Kumar Sana's case (Supra) cannot be of any assistance to Mr, Das's client. Moreover, the question of damages simpliciter cannot be considered when the pleading as to readiness and willingness in the plaint still remains intact. Mr. Das submits that no issue was raised on that. In my opinion, that may be so, but even then the plaintiff cannot be entitled to damages hi lieu of specific performance or in substitution therefor when he is no longer agreeable to perform his obligation under the contract. As already observed, the discretion whether or not specific performance should be granted and whether or not damages in substitution therefor should be allowed would be a matter for the Court alone and not for the plaintiff. Whether or not the issue as to readiness and willingness had been, raised at the trial the position does not alter in the least in a suit for specific performance. That issue would always be deemed to be there up to the time of the passing of the decree on the basis that both parties agreed about each other's readiness and willingness but if at the trial the plaintiff would say that he would not want specific performance then the position immediately becomes different. If the plaintiff would not be ready and willing to perform his part of the contract then the Court would not be in a position to consider the question of passing a decree for specific performance and if that would be the position then the damages in substitution therefor cannot be considered at all. The question of awarding damages in substitution for specific performance would, under the circumstances, never arise at all. It is no good contending that the parties in fact agreed and, therefore, it was not necessary to prove readiness and willingness.

7. In this case the learned trial Judge has awarded damages to the extent of a sum of Rs. 25,000/- by way of damages in lieu of specific performance. In my view, the learned trial Judge was in error in awarding such damages on such basis. The learned Judge failed to consider the evidence before the Court and could not have reached such a conclusion after exercising his discretion in the matter.

8. That being the position, it is not necessary to go into the details of the facts. The result, therefore, is that the appeal is allowed and the decree in the suit be set aside. There will be a decree and order that the appellant would be bound to pay a sum of Rs. 305/- with interest at 6% per annum from the date of the filing of the suit till realisation to the respondent on the basis of the concession by Mr. Sen. The plaintiff respondent Dulichand is bound to pay the costs of this appeal as also the costs of the suit to the appellant. Certified for two counsel. It is recorded that Mr. Das did not press the cross-objection filed herein and as such the same is dismissed. Certified for two counsel.

Hazra, J.

9. I agree. As the appeal involves question of law of general importance, I think 1 shall also add a few words.

10. Two interesting points of law arise for consideration in this appeal: (a) how fai the Court can allow damages when the claim for specific performance was not pressed or was abandoned at the trial; (b) can the Court in such circumstances grant damages in lieu of specific performance.

11. The facts and events giving rise to the above questions of law are shortly indicated here under : Bahadurmull Dulichand, a partnership firm (hereinafter referred to as the firm) filed a suit for specific performance of a contract dated October 20, 1964 against lour defendants, namely, (1) Gopinath Sen, (2) Radha Nath Sen, (3) Gorachand Sen and (4) Kamal Krishna Sen. The defendants agreed to Jet out the second floor with verandah of premises No. 40/A/2/A, Armenian Street, Calcutta, (hereinafter referred to as the premises) owned by the defendants, Gopinath Nath, Radha Nath and Kamal Krishna, to the plaintiff firm as tenant on a monthly rent of Rs. 305/- per month according to English Calendar. The rent receipt was signed by Gopinath, Radha Nath and Gorachand on account of advance rent for one month and it was given to the plaintiff firm. In the rent receipt it was stated that construction would be done according to the plan approved by the Corporation on July 30, 1964 and possession would be given after construction by March 1, 1965 and tenancy would start from that day.

12. The rent receipt is an admitted document in the suit. It is also admitted that one month's rent was taken as advance on October 20, 1964. No construction was made by March 1, 1965. Thereafter, on May 15, 1965 a letter was addressed to the defendants by the firm with reference to the rent receipt. In that letter, the firm stated as follows:

'As per the above receipt you would have given us the possession by end of March, 1965, but this time has elapsed long since and we have not yet got the possession. In the meantime, there had been several oral assurance by you for an earlier step towards giving possession. Anyhow, we would hereby ask you to kindly confirm immediately about the last date by which you will be able to give us the possession. Please do the needful at your very earliest and oblige.' No reply was given by the defendants to this letter. No other letter was addressed by the firm to the defendants. On September 4, 1967 this suit for specific performance was filed. In the suit, the plaintiff referred to the agreement in writing dated October 20, 1964 by the defendants to let out 'on rent the entire second floor with verandah of the said premises and to deliver possession thereof after construction on terms and conditions mentioned in the agreement in writing. There were also certain other terms mentioned in the plaint which are not contained in the rent receipt. It is not necessary to refer to the same for the purpose of this appeal as parties went to trial on the basis of the rent receipt in writing which is marked as exhibit 'A'.

13. In paragraph 7 of the plaint it is stated that the defendants and each of them in spite of repeated demands have not uptil now constructed the entire 2nd floor of the premises or any portion thereof nor has delivered possession. In paragraph 8 of the plaint it is stated that the defendants and each of them have wrongfully and illegally neglected and/or refused to perform their part of the contract and as such repudiated the same. In paragraph 9 of the plaint it is stated that the plaintiff has been and still is ready and willing to perform its part of the contract and has all along been ready and willing to take possession of the premises and pay rent accordingly. It is stated in the plaint that the plaintiff firm is entitled to specific performance of the agreement dated October 20, 1964. It is also stated that the premises agreed to be let out to the plaintiff firm is of great importance and of great value to the plaintiff firm inasmuch as it is situated near the existing place of business of the plaintiff firm and mere compensation of money would not afford adequate relief. In paragraph 12 of the plaint it is stated that if the defendants complete the said transaction the plaintiff shall claim damages to the extent of Rs. 25,000 which the plaintiff has suffered by reason of the defendants,' wrongful refusal to complete the same in accordance with the terms of the agreement. It is stated, in the alternative, that if the Court pleases to hold that relief of specific performance cannot be granted, then in the case the plaintiff firm claims relief of the sum of Rs. 305/- paid by the plaintiff to the defendants as aforesaid. The plaintiff has also claimed damages for Rs. 1,50,305/-in lieu of specific performance being the difference between the existing income and the income they could have earned if they expand the volume of sale in getting possession of the premises.

14. On the above statements, the plaintiff claims (a) decree For specific performance of the contract dated October 20, 1964; (b) decree directing the defendants to erect 2nd floor including verandah on the premises No. 40/A/2/A, Armenian Street, and described in the schedule hereunder according to sanctioned plan; (c) decree directing the defendants to deliver possession of the 2nd storey with verandah forthwith after the construction; (d) decree forRs. 25,000/- or such other sum as this Court may deem fit as damages in terms of paragraph 12 hereof and (e), Alternative decree for refund of Rs. 305/- with interest at the rate of 12 per cent, per annum and decree for Rs. 1,50,000/- in lieu of specific performance.

15. in the written statement, the defendants stated that the construction of the second floor was not possible according to the Corporation plan without obtaining possession of the ground floor of the premises from the tenants. A suit for mandatory injunction was filed by one of the tenants against the defendants restraining the defendants from committing any act violating the right of the tenant. The suit was dismissed on October 10, 1966 and it is expected that the defendants would be able to construct the second floor within a reasonable time. With regard to para. 9 of the plaint the defendants stated that the question of alleged readiness or willingness to perform the alleged contract or pay rent does not arise. The defendants had all along been and still are ready and willing to let out to the plaintiff the said portion of the premises as and when the same would be constructed. The defendants have denied that the plaintiff was entitled to specific performance of the agreement.

16. At the trial two issues were raised, viz., (1) Did the defendants fail to perform their part of the contract wrongfully and illesally as alleged in paragraph 7 of the plaint and (2) What relief, if any, is the plaintiff entitled to ?

17. On behalf of the plaintiff four witnesses were called. Dulichand Kochar, a partner of the plaintiff firm gave evidence. But he did not state that the plaintiff was ready and willing to carry out its part of the agreement or that the plaintiff claims specific performance of the agreement. The evidence of other witnesses of the plaintiff firm were confined to the claim for damages.

18. In his judgment, the learned Judge observed that the only real issue to be decided in this suit is whether the plaintiff is entitled to compensation, if so, on what basis The argument by the learned counsel for the plaintiff firm was confined to claim for damages. The learned counsel for the defendants submitted that the damages alleged to have been claimed are entirely speculative and are too remote and cannot be allowed under Section 73 of the Contract Act. The learned Judge after elaborate discussion on the question oidamages awarded to the plaintiff Rupees 25,000/- in lieu of specific performance of the contract dated October 20, 1964. Against this decree this appeal has been preferred by Gopi Nath Sen, Radha Nath Sen and heir of Kamal Krishna Sen, who died after the decree, but before filing of the appeal. The plaintiff firm has also filed a cross-objection claiming inter alia that the learned trial Judge should have passed a decree tor the sum of Rs. 1,50,000/- as damages in lieu of specific performance.

19. Appearing for the appellants Mr. P. K. Sen, with Mr. Pinaki Ghose has raised a very interesting point of law. The contention of Mr. Sen is that in a suit for specific performance if the plaintiff by his own conduct disables himself from claiming any decree for specific performance he thereby precludes himself from claiming any amount as compensation either in addition to or in lieu of specific performance. Mr. Sen submits that in course of the trial, Dulichand Kochar, a partner of the respondent firm who was examined as witness on behalf of the plaintiff ..... respondentNo. 1 was asked by the learned counsel examining him in chief whether he was ready and willing to take the lease from the defendants and in answer he said 'no, at present we claim the damage only'. (Q. 71, page 32 of the P. B.) According to Mr. Sen, the learned counsel for the appellant, the learned trial Judge could not award Rs. 25,000/- or any sum at all as damages in lieu of specific performance in favour of the plaintiff respondent No. 1. He also contends that the plaintiff had no right to claim damages for breach of contract simpliciter in the plaint as framed. Mr. Sen has relied on Ardeshir Mama v. Flora Sassoon, 55 Ind App 360: (AIR 1928 PC 208). In view of the argument of Mr. Sen, the above two questions arise for our consideration in this appeal.

20. To consider this argument of Mr. Sen, I will first read Section 21, Sub-sections (1), (2) and (3) of the Specific Relief Act, 1963 (Act 47 of 1963).

'21. Power to award compensation in certain cases.-- (1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. -

(2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff isentitled to compensation for that breach, it shall award him such compensation accordingly.

(3) IF, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.''

The words 'in addition to, or in substitution of such performance' in Sub-section (1) mean that compensation can be given by Court in case where specific performance could have been given either in addition to specific performance or in lieu of it. Thus, under Sub-section (1), the power and jurisdiction of the Court to give damages arise in two cases, viz., either in addition to, or in substitution of specific performance. The learned Judge, in the instant case has granted damages in lieu of specific performance. The circumstances under which the Court would award damages in lieu of specific performance are laid down in Sub-section (2) of Section 21. Damages in lieu of specific performance can be given in case where specific performance could have been granted but in the circumstances of the case the Court in its discretion considers that it would be better to award damages instead. It follows, therefore, that in those cases where specific performance would have been feasible and proper, but there were reasons why it would be better to give damages in lieu, the Court would decree the latter form of relief.

21. The above principle of law was stated by Chitty, J. in Lavery v. Pursell, (1888) 39 Ch D 508 at page 519 in a very simple language. I think, I shall quote the same here;

'It was suggested after Lord Cairns' Act the Court of Equity could give damages in lieu of specific performance. Yes, but it must be in a case where specific performance could have been given. It was a substitute for specific performance. It did not give the old Court of Chancery a general jurisdiction to give damages whenever it thought fit, it was only in that kind of case where specific performance would have been the right decree and there were reasons why it would be better to substitute damages, but that could not apply to a case where you should not have given specific performance.'

The principle of law. stated above is well settled. It was embodied in Section 19 of the Specific Relief Act, 1877 and the same principle is stated by Section 21 of the Specific Relief Act 1963 by which the former is repealed. I accept the principle of law as laid down by Chitty, J. in that case.

21-A. I shall now turn to the leading case Ardeshir Mama v. Flora Sassoon, 55 Ind App 360 : (AIR 1928 PC 208) relied on by Mr. Sen. In that case the plaintiff filed a suit for specific performance of a contract and claimed compensation in addition to or in substitution for such performance. Subsequent to the filing of the suit, by the Solicitor's letter the plaintiff gave notice that he would not claim specific performance but would claim damages. At the trial objection was taken that the plaintiff could not recover damages without an amendment of the plaint. Thereafter by leave the plaint was amended by a claim in the alternative for the return of the money advanced with interest as damages. Delivering the judgment of the Privy Council. Lord Blanes-burgh discussed the English and Indian Law on points both historically and with reference to Specific Relief Act, 1877. At page 372 of the report the Privy Council observed:

'..... in relation to a contract to which the equitable form of relief was applicable, a party thereto had two remedies open to him in the event of the other party refusing or omitting to perform his part of the bargain. He might either institute a suit in equity for specific performance, or he might bring an action at law for the breach. But -- and this is the basic fact to be remembered throughout the present discussion -- his attitude towards the contract and towards the defendants differed fundamentally according to his choice.' The Privy Council further observed :

'Where the injured party sued at law for a breach, going, as in the present case, to the root of the contract, he thereby elected to treat the contract as at an end and himself as discharged from its obligations. No further performance by him was either contemplated or had to be tendered. In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part,' Thus it is an election of the plaintiff whether to sue for specific performance and claim for damages in addition to or in substitution for it, or to sue for damages for breach of contract. If by his election the plaintiff precludes himself from milking the averment of readiness and willingness to perform his part of the contract and prove the same which is essential to the success of the suit for specific performance the question for damages in lieu of specific performance would not arise. At page 374 of the report Privy Council observed :

'In the present instance, their Lordships are disposing of a case in which the plaintiff had debarred himself from asking at the hearing for specific performance, and in such circumstances, notwithstanding Lord Cairns' Act, the result still was that with no award of damages -- the Court could award none -- the order would be one dismissing the suit with no reservation of any liberty to proceed at law for damages : See per Lord Selbornc,' Hipgrave v. Case : 28 Ch D 356, 362. In other words, the plaintiffs rights in respect of the contract were at an end.'

Following the judgment of the Privy Council and the principle of law discussed above there is no doubt in my mind th;it Mr. Sen is fully justified in his submissions. In the facts of this case, at the trial the witness for the plaintiff did not prove readiness and willingness on the part of the plaintiff to take the monthly tenancy from the defendants and he wanted damages only. Although the plaintiff filed a suit for specific performance and the defendants stated that the defendants were ready find willing to give tenancy as and when the building would be constructed. but the plaintiff stated at the trial of the suit that the plain-tiff was claiming only damages. Therefore, the plaintiff was no longer interested in taking the tenancy, but instead claimed damages it the trial without amending the plaint. What follows then? On the principle of law laid down by the Privy Council in Ardeshir Mama v. Flora Sasoon, 55 Ind App 360 : (AIR 1928 PC 208) and under Section 16 of the Specific Relief Act. 1963 specific performance cannot be enforced in favour of a person who fills to prove that he has always been and still is ready and willing to perform the essential part of the contract which are to be performed by him. The claim for specific performance was not pressed at the trial. It was really abandoned. The plaintiff contended at the trial that he was entitled to dam-ages. The suit for specific performance must, therefore, fail. Once a suit for specific performance fails by reason of thefact that claim for specific performance was not pressed or abandoned at the trial, the question of damages for spe-cific performance in substitution also fails. The question of claiming dam-ages for breach of contract under Section 73 of the Contract Act is an entirely different cause of action on the principle laid down in Mama v. Sassoon. It is also clear from Section 24 of the Specific Relief Act, 1963 that the dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiff's right to sue for compensation for the breach of such contract.

22. In the above view of the matter, the learned trial Judge could not have allowed Rs. 25,000/- as damages in lieu of specific performance, It appears that the case was conducted before the learned trial Judge on misapprehension of law and in disregard of the principles discussed above. In the argument advanced before the learned trial Judge, the attention of the learned trial Judge was not drawn to the points of law discussed above. The observation of the learned trial Judge that the only real issue to be decided in the suit is whether the plaintiff is entitled to compensation and if so, on what basis, cannot arise on the plaint as framed.

23. Mr, P. K. Das for the respondent No. I appreciated the difficulties of the case in this respect. He contends that this point was not urged before the learned trial Judge. No issue was framed. So this point could not be urged before the Court of appeal. In my view, there is no substance in the argument of Mr. Das. The question involved is a pure question of law and it ensures from facts admitted or proved. The plaintiff has filed a suit for specific performance. The plaintiff did not give any evidence at the trial that the plaintiff was ready and willing to perform the essential terms of the contract. From the evidence at the trial and from the argument made before the learned trial Judge it is clear that the plaintiff was not ready and willing to take the lease from the defendants. So. specific performance of the contract could not be given and as such the learned trial Judge could not have granted damages in lieu of specific performance. The question of compensation for breach of contract under Section 73 simpliciter does not arise, in the facts and circumstances of the case.

24. Realising the difficulty Mr. Das has submitted that the plaintiff should be givenleave to amend the plaint converting the suit into one for damages for breach of contract simpliciter and referred to the decision of P. B. Mukharji, J. in Rajendra Nath Saha v. Saraswah Press Ltd. : AIR1952Cal78 . Had the plaintiff applied for amendment of the plaint before the trial of the suit the question might have been different. The Court has no doubt power to amend the plaint converting a suit for specific performance of a contract into a suit for damages for breach of contract, but it should be granted in a proper case. As stated by the Privy Council in .55 IA 360 at page 378 : AIR 1928 PC 208 'An amendment which deprived the Court of (he power to compel him to accept a decree, on pain of having his action dismissed it' he did not, was not one lightly to be granted''. After evidence has been laid at the trial and decree for damages in lieu of specific performance passed in a case where the plaintiff has abandoned the case for specific performance the question of amendment of the plaint does not arise. It appears from the judgment of P. B. Mukharji, J. that in the original plaint claim was made for specific performance of an agreement under which the plaintiff agreed to sell to the defendant certain immovable property. Before the trial, the plaintiff sought to amend the plaint to delete the averment of readiness and willingness and to delete the claim for specific performance and to substitute a claim for damages simpliciter for breach of the agreement. The reason put forward for this amendment is that the property in suit has been requisitioned by the Government pending suit with the result that the plaintiff himself can no longer specifically perform the agreement to convey the property.

25. The facts of the case before P. B. Mukhaiji, J. are entirely different and distinguishable. In any event, there was no application to amend the plaint in the instant case before the trial. The question of amendment of the plaint cannot be allowed at this stage when the plaintiff has filed a cross-objection against the decree claiming the entire sum of Rs. 1,50,000/- in lien of specific performance as claimed in the plaint. In my view, the suit should be dismissed by reason that the plaintiff has failed to prove at the trial the necessary averments for a decree for specific performance of the agreement.

26. Arguments were made by the learned counsel for the respective parties and several cases were cited at the bar on the question of damages for breach of contractunder Section 73 of the Contract Act. In the above view of the matter it is not necessary to deal with the same, but as arguments have been made on the point I will only say that, in my view, the plaintiff has failed to prove the case for damages as alleged in the plaint. Further, the testimony of the witness Bhikam Chand Vaid called on behalf of the plaintiff is not admissible as opinion evidence as he is not an expert witness. The learned trial Judge was not justified in relying on his evidence as expert evidence. In my view, the learned trial Judge was also not justified in coming to the conclusion that Rs. 25,000/- would be a fair assessment of compensation to the plaintiff firm for breach of the agreement.

27. In the above view of the matter, the judgment and decree of the learned trial Judge should be set aside. There is, however, one question which has to be considered. This is with regard to the claim for refund of Rs. 305/- which was paid as advance rent for one month by the respondent No. I to the appellants. Mr. Sen, the learned counsel for the appellants has submitted that the appellants are agreeable to refund the sum of Rs. 305/- to the respondent No. 1 firm.

28. In the premises, the appeal is allowed. It is decreed and ordered that the appellants will pay the sum of Rs. 305/- with interest at 6 per cent, per annum from the date of filing of the suit till realisation to the respondent No. 1 firm, Bahadurmull Dulichand. The cross-objection by respondent No. 1 is not pressed and the same is dismissed. It is further ordered that the respondent No. 1, Bahadurmull Dulichand must pay the cost of the appeal as also the cost of the suit to the appellants.


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