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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 ..... sideration of Rs. 15,000. On the very day, i.e., 3.7.1973, another agreement was entered into between the parties whereunder Appellant agreed to reconvey the said properties to the Respondent against payment of Rs. 15,000/within two years. On 2.6.1975, well within the period of two years stipulated for the performance of the agreement to re-sell, Respondent instituted the suit for specific performance alleging that despite offer of performance and tendering the price, Appellant, with the dishonest intention of appropriating the properties to himself refused reconveyance. The Appellant contested the suit principally on the ground that Respondent was never ready and willing to perform the contract and that Respondent himself was in breach. 4. The trial court framed the necessary and relevant issues stemming from the pleadings and on its own appreciation of the evidence on record came to find against the Respondent that he was ready and willing to perform the contract; and that the agreement, being one of reconveyance, time was of its essence. The suit was accordingly dismissed. Respondent's first appeal before the learned IInd Additional District Judge, Bulandshahar was also unsucc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices which could be treated as a part to the plaint having been referred to and relied upon therein. 8. In our opinion, the High Court was right in its view. The notices must be presumed to have been served as contemplated by Section 27 of the General .Clauses Act. As to the jurisdiction of the High Court to reappreciate evidence in a second appeal it is to be observed that where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. We find no substance in the first contention. 9. The second contention is, however, not without its interesting aspects. During the pendency of the second appeal, the properties were acquired by the State for a public purpose. This is not disputed. It would appear that a compensation of Rs. 4 lakhs or thereabouts has been determined. That sum, along with the generous solatium and the rates of interest provided by the statute would now be a much larger amount. Before the High Court, Appellant sought to rely upon the decision of this Court in Piarey Lal v. Hori Lal, [1977] 2 S.C.R. 915. That was a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieu or substitution of specific performance. While the solution that has commended itself to the High Court might appear essentially just or equitable, there are certain problems both of procedure and of substance in the administration of the law of specific relief particularly in the area of award of an alternative relief in lieu or substitute of specific performance that require and compel consideration, especially in view of some pronouncements of the High Courts which have not perceived with precision, the nice distinctions between this branch of the law as administered in England and in India. 10. Section 21 of the Specific Relief Act, 1963 corresponding to Section 19 of 1877 Act enables the plaintiff in a suit for specific performance also to claim compensation for its breach either in addition to or in substitution of, such performance. Sub-sections (2), (4) and (5) of Section 21 are material and they provide: "(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 plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 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 dichotomy in the jurisdiction between common law and Equity Courts in the matter of choice of the nature of remedies for breach. In common law the remedy for breach of a contract was damages. The Equity Court innovated the remedy of specific performance because the remedy of damages was found to be an inadequate remedy. Lord Cairn's Act, 1858 conferred jurisdiction upon the Equity Courts to award damages also so that both the reliefs could be administered by one court. Section 2 of the Act provided: "In all cases in which the Court of Chancery has jurisdiction to entertain an application for specific performance of any covenant, contract or agreement it shall be lawful for the same Court if it shall think fit to award damages to the party injured either in addition to or in substitution for such specific performance and such damages may be assessed as the Court shall direct." This i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 specific departure in the Indian law. In Lord Cairn's Act. 1858 damages could not be awarded when the contract had, for whatever reason, become incapable of specific performance. But under the Indian law the explanation makes a specific departure and the jurisdiction to award damages remains unaffected by the fact that without any fault of the plaintiff, the contract becomes incapable of specific performance. Indeed, Sassoon's case is not susceptible of the import attributed to it by the Nagpur High Court. Sassoon's case itself indicated the departure made in Indian Law by the Explanation in Section 19 of the 1877 Act, which is the same as the Explanation to Section 21 of the 1963 Act. The Judicial Committee, no doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" In the present case there is no difficulty in assessing the quantum of the compensation. That is ascertainable with reference to the determination of the market value in the land acquisition proceedings. The compensation awarded may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award. 14. We accordingly confirm the finding of the High Court that Respondent was willing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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