9911796707
TMI Blog2005 (5) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 14,000/- in addition to the said sum of ₹ 16,000/-. The said Balwant Singh died on 11.2.1968 whereafter the Appellant herein entered into another agreement for sale on or about 17.10.1968 in relation to the suit land. The said agreement was entered into by him on his own behalf as also on behalf of his sister, for a consideration of ₹ 4,700 per acre. The amount of ₹ 32,000/- paid to Balwant Singh was treated to be the earnest money under the said agreement, in terms whereof, a sale-deed was to be executed and registered on or before 20.6.1969. As the Appellant herein allegedly failed and/or neglected to perform his part of contract, a suit for specific performance of the said agreement dated 17.10.1968 was filed. In the said suit, a plea was raised that the Appellant herein was not authorized to enter into the agreement for sale on behalf of his sister Tajinder Kaur. The Trial Court inter alia accepting the said plea dismissed the suit. It was further held that as two Khasras bearing Nos.39/4 and 29/3/2 were not included while describing the land in the plaint, a decree for specific performance could not be granted. A Letters Patent Appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 253/3281 Khasra Nos. Rect No. 39 Killa Nos. 1, 2, 3/1, 7/2/1, 8, 9, 10, 11/1, 12/2, 13/1, 14/1 Rect No. 28 Killa Nos. 22, 23, 24, 25, 27 Rect No.29 Killa Nos. 21, 22 Rect No. 40 Killa No. 15/1 Rect. No.69 Killa Nos. 7/34, 4/35, 7/2 Rect No.59 Killa BO. 21 Rect No.60 Killa Nos. 16, 25 Rect No. 70 Killa No.1/1 26 mentioned in the Jamabandi for the year 1967-68 situated in village Rajoana Kalan, Tehsil Jagraon, District Ludhiana in the year 1967-68 and situated in Village Rajoana Kalan, Tehsil Jagaraon, subject to the payment of the entire sale consideration in the sum of ₹ 32,000/- and dismiss the present appeal. Mr. R.K. Talwar, the learned counsel appearing on behalf of the Appellant, would contend that having regard to the fact that the plaintiffs- Respondents did not file an appropriate application conforming to the requirements of sub-section (3) of Section 12 of the Specific Relief Act, 1963 (the Act), the impugned judgment cannot be sustained. According to the learned counsel the said Respondents had also filed a cross- objection and in that view of the matter they cannot be said to have relinquished their claim as regard performance of the remaining part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admits of compensation in money, the party not in default is entitled to specific performance on payment on the whole consideration, reduced by the consideration for the part left unperformed. Section 12(3) of the Act is a beneficial provision so far as the purchasers are concerned. In the instant case, in view of the findings of fact arrived at by the High Court, the decree for specific performance of contract in respect of the entire suit land could not have been granted as the Appellant herein was not authorized by his sister to enter into the agreement for sale. The relinquishment of claim as contemplated under Section 12(3)(ii) of the Act as regard performance of the remaining part of the contract and all rights to compensation need not specifically be pleaded and can be made at any stage of the litigation. Such a plea can also be raised at the appellate stage. Delay by itself, it is trite, may not stand in the way of the plaintiff from claiming the relief unless the defendant establishes prejudice. In this case, the Division Bench of the High Court passed a decree of specific performance of contract relying on or on the basis of a decision of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s sister and the only valid contract was with respondent in respect of his share in the property. In Rachakonda Narayana (supra), analyzing the provisions of sub- section (3) of Section 12 of the Act, this Court opined : Thus, the ingredients which would attract specific performance of the part of the contract, are: (i) if a party to an agreement is unable to perform a part of the contract, he is to be treated as defaulting party to that extent, and (ii) the other party to an agreement must, in a suit for such specific performance, either pay or has paid the whole of the agreed amount, for that part of the contract which is capable of being performed by the defaulting party and also relinquish his claim in respect of the other part of the contract which the defaulting party is not capable to perform and relinquishes the claim of compensation in respect of loss sustained by him. If such ingredients are satisfied, the discretionary relief of specific performance is ordinarily granted unless there is delay or laches or any other disability on the part of the other party. It was furthermore held that an application for amendment of the plaint relinquis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in an identical situation, referring to the decision of this Court in Kalyanpur Lime Works Ltd. (supra), held : I have already stated that learned Advocate General while opening the case of his client specifically stated that he was giving up the cross-objection and that he was relinquishing claim for further performance and for compensation etc. as required under Section 15 of the Specific Relief Act, 1877. The relinquishment as required by law, having been made in this Court the plaintiff-respondent could not be non-suited on this ground. In view of the legal position and also in view of the statement made across the Bar including the application for amendment of plaint filed on behalf of the plaintiffs-Respondents in this Court, there cannot be any doubt that this Court can uphold the decree passed by the Division Bench of the High court relying on or on the basis of such statement as also upon allowing the application for amendment of plaint. It may be true that in the application for amendment, there is no specific averment as contained in clause (ii) of sub-section (2) of Section 12 of the Act but the entire application, in our opinion, has to be read as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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