NALINI SHEELA Vs. SUBRAMANIYAN CHETTIAR SHANMUGHOM CHETTIAR

JUDGEMENT

(1.) The Defendant in a suit for specific performance has filed this appeal. Suit filed by the Respondent/Plaintiff for enforcing a contract of sale entered with the Appellant was tried along with two other suits, one of them filed by the same Plaintiff for a decree of injunction to restrain the Defendant from alienating the property, the subject-matter covered by the agreement of sale, and the other suit, by the brother of the Defendant, for partition, which included the property covered by the contract of sale. After joint trial, the suit for specific performance was decreed, and a preliminary decree was passed in the suit for partition.

(2.) In the suit for specific performance, the Plaintiff, by way of amendment, had raised an additional claim for compensation as well in view of the breach of contract committed by the Appellant/Defendant in completing the contract of sale. With the suit, the Respondent/Plaintiff deposited the balance sale consideration due under the contract, that is, 71,000 and thus, he paid the entire sum of 1,21,000, the sale price agreed upon by the parties. Since there was delay on the part of the Defendant in executing the sale deed and completing the contract, Plaintiff claimed 12% interest on the sale price aforesaid as damages. The trial court raised an issue as to whether the Plaintiff is entitled to the claim of damages with the other issues of the suit. After appreciating the materials tendered in the case, the trial court concluded that for the reason the Plaintiff had tendered the balance sale price with the plaint, he cannot claim compensation or damages from the Defendant. In that view of the matter, the claim for compensation was negatived. Feeling aggrieved, the Plaintiff preferred an appeal challenging the declining of his claim for compensation. The lower appellate court, after re-appreciating the materials, held that the Plaintiff is entitled to claim compensation at the rate of 12% per annum on the sale price covered by the contract, and, accordingly, a decree for such damages was granted to the Plaintiff. Correctness of that decree is assailed by the Defendant in the appeal.

(3.) I heard the counsel on both sides. Though in a suit for specific performance, a Plaintiff is entitled to claim compensation in addition to enforcement of the contract through court, as covered by Section 21 of the Specific Relief Act, 1963, hereinafter referred to as the Act, in the present case, there was no specific pleading as to what was the damage suffered by the Plaintiff on account of the delay in the completion of the contract, and the claim of compensation reckoned at 12% interest on the sale price was canvassed only on the basis that the balance sale price had been deposited with the plaint, is the submission of the learned Counsel for the Appellant/Defendant to contend that the lower appellate court went wrong in interfering with the conclusion formed by the trial court that no case for damages had been made out by the Plaintiff. The decree granted by the lower appellate court awarding 12% interest on the sale price covered by the contract as compensation, according to the counsel, was based on matters which are not pleaded nor raised in the suit. Solely for the reason that Section 21 of the Act contemplate and permit grant of compensation in addition to a decree of specific performance, according to the counsel, the claim raised by the Plaintiff had been granted by the lower appellate court without looking into whether such claim had been made out by the pleadings and materials tendered in the case. Per contra, the learned Counsel for the Respondent contended that a specific claim for compensation was urged amending the plaint and, further, it has come out in evidence that the Defendant not only was recalcitrant but he committed breach of the contract wilfully and deliberately, and was culpable for the inordinate delay in completion of the contract of sale. It is submitted by the counsel that the suit for partition at the instance of another, the brother of the Defendant, was an attempt by him to stall the completion of the sale. Plaintiff in the case, according to the counsel, has established his claim for damages, and the lower appellate court was justified in awarding 9% interest on the sale price as compensation, but, by mistake, it has been stated in the operative portion of the judgment and also in the decree as 12% on sale price per annum. The counsel submitted that except to the extent of modifying the compensation limiting it to 9% per annum, no interference with the decree awarding compensation, is called for.