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TMI Blog1991 (11) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 (one lakh fifty thousand only) which, by a rough and ready estimate, we quantify as the amount to be paid to the appellant in respect of his services, time and money expended in pursuing the legal-claims for compensation. Therefore, there is no need for Respondent to pay the sum of ₹ 15,000 additionally - Civil Appeal No. 4916 of 1991 - - - Dated:- 25-11-1991 - VENKATACHALLIAH, M.N. AND AGRAWAL, S.C., JJ. For the Appellant: Manoj Swarup and Ms. Lalita Kohli For the Respondent: B.S. Nagar JUDGMENT VENKATACHALIAH, J. Special leave 'is granted and the appeal taken-up for final hearing and disposed of by this judgment. We have heard Sri Manoj Swamp, learned counsel for the Appellant and Shri Goodwill Indeevar for the Respondent. 2. Appellant was Defendant in a suit for specific performance. He seeks special leave to appeal to this Court from the judgment and order dated 5.4.1991 of the High Court of Allahabad in Second Appeal No.3395 of 1978 decreeing, in reversal of the decrees of dismissal entered by the two courts below, specific performance of an agreement for sale of land.. 3. On 3.7.1973 Respondent-Natthu Singh sold Plot No.195 measuring 5 bigha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which the relief of specific performance had itself become impossible. 7. On the first question, as to the readiness of the Respondent to perform his obligations, the High Court noticed that on 30th January, 1974 even before institution of the suit Respondent and his brother had sold another property belonging to them for a price of Rs. 30,000 and that Respondent had the necessary wherewithal to perform his part of the bargain. The High Court held: "...Thus, the plaintiff admittedly had received Rs. 15,000/on 30.1. 1974 and soon thereafter the first notice was issued to the defendant asking him to indicate a date for executing the saledeed and also expressing his readiness and willingness. There is no evidence on the record that between 30.1.1974 and the date of suit or thereafter the plaintiff had parted with this money." The High Court also noticed that the two notices dated 23.3.1974 and 6.5.1975 respectively issued by the Respondent to the Appellant before the suit contained the averments that he was ready and willing to perform the contract. The notices were, no doubt, not actually served on the appellant as they had come back unserved upon the alleged refus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substituted..." The High Court issued these consequential directions: "If the decree for specific performance of contract in question is found incapable of being executed due to acquisition of subject land, the decree shall stand suitably substituted by a decree for realisation of compensation payable in lieu thereof as may be or have been determined under the relevant Act and the plaintiff shall have a right to recover such compensation together with solatium and interest due thereon. The plaintiff shall have a right to recover it from the defendant if the defendant has already realised these amounts and in that event' ;the defendant shall be further liable to pay interest at the rate of twelve per cent from the date of realisation by him to the date of payment on the entire amount realised in respect of the disputed land." We are afraid the approach of the High Court is perhaps somewhat an over-simplification of an otherwise difficult area of law as to the nature of relief available to a plaintiff where the contract becomes impossible of specific performance and where there is no alternative prayer for compensation in lieu or substitution of specific perform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im for compensation failing under Secion 21 of the Specific Relief Act, 1963 and the amendment is one under the proviso to sub-section (5). But different and less liberal standards apply if what is sought by the amendment is the Conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Contract Act is invoked. This amendment is under the discipline of Rule 17 Order 6, C.P.C. The fact that sub-section (4), in turn, invokes Section 73 of the Indian Contract Act for the principles of quantification and assessment of compensation does not obliterate this distinction. The provisions of Section 21 seem to resolve certain divergencies of judicial opinion in the High Courts on some aspects of the jurisdiction to award of compensation. Subsection (5) seeks to set at rest the divergence of judicial opinion between High Courts whether a specific claim in the plaint is necessary to grant the compensation. In England Lord Cairn's (Chancery Amendment) Act, 1858 sought to confer jurisdiction upon the Equity Courts to award damages in substitution or in addition to specific performance. This became necessary in view of the earlier d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could rightly have been claimed. The appeal, therefore, fails and is dismissed with costs." . Support for these conclusions was sought from the oft quoted, but perhaps a little misunderstood, case of Ardeshir H. Mama v. Flora Sassoon A.I.R. 1928 Privy Council 208. The passage in Sassoon's case relied upon by the Nagpur High Court is this: "In a series of decisions it was consistently held that just as its power to give damages additional was to be exercised in a suit in which the Court had granted specific performance, so the power to give damages as an alternative to specific performance did not extend to a case in which the plaintiff had debarred himself from claiming that form of relief, nor to a case in which that relief had become impossible. The case of 52 Bombay 597 fell within the first category of cases described above under the alternative relief of damages. This case fails within the second part where the relief of specific performance has become impossible." (emphasis supplied) The second part of the observation of the Nagpur High Court, with great respect to the learned Judges proceeds on a fallacy resulting from the non-perception of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific performance. We may assume that it was not so specifically sought. In order that formality in this behalf be completed, we permit the amendment here and now so that complete justice is done. 13. The measure of the compensation is by the standards of Section 73 of the Indian Contract. Here again the English Rule in Bain v. Fothergill, (1874) L.R. 7 House of Lords 158 that the purchaser, on breach of the, contract, cannot recover, for the loss of his bargain is not applicable. In Pollock Mulla on Contract (10th Edn.) the law on the matter is set out thus : "Where, therefore, a purchaser of land claims damages for the loss of his bargain, the question to be decided is whether the damages alleged to have been caused to him 'naturally arose in the Usual course of things from such breach'; and in an ordinary case it would be difficult to hold otherwise." [p. 663] Learned Authors adopt the following observation of Farran C.J. in Nagardas v. Ahmedkhan, (1895) 21 Bom. 175 : "The Legislature has not prescribed a different measure of damages in the case of contracts dealing with land from that laid down in the case of contracts relating to commodities" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her with all the solatium, accrued interest and all other payments under the law authorising the acquisition, less a sum of Rs. 1,50,000 (Rupees one lakh fifty thousand only) which shall go to the Appellant towards his services, time and amounts spent in pursuing the claims for compensation as well as the consideration stipulated for reconveyance .... The sum of Rs.1,50,000 is allowed to be.. paid to the Appellant on his assurance that he has not received any part of the compensation earlier. If any amount has been received by the Appellant out of compensation awarded for the acquisition, such sums shall go in reduction of the sum of Rs.1,50,000, the difference being for the benefit of and be paid to the Respondent additionally. This order shall be sufficient authority for the land acquistion authorities or the Courts wherever the matter may be pending for the apportionment and payment of the compensation for the acquisition of the suit property between the Appellant and the Respondent in the manner indicated above. These directions shall, of course, not affect or prejudice the claim of other claimants, if any, whose claims are to be determined in the said land acquistion proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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