MATHAI THOMMAN Vs. THOMAS MATHEW

JUDGEMENT

(1.) DEFENDANT 4 in O. S. No. 21 of 1119 on the file of the district Court, Parur, has preferred this appeal against the decree that Court passed in the suit for specific performance of an agreement by defendants 1 to 3 to sell certain items of immovable properties to the plaintiff. The appellant purchased those properties subsequent to the contract for sale and the lower court's decree directs enforcement of the agreement against the appellant as well as one whose title arose after it came into being. Hence this appeal by him.

(2.) THE main defence he raised to the suit was that he was a transferee for value who paid the consideration for the sale in his favour in good faith and without notice to the original contract. That defence has been found against by the learned judge in the court below and the appellant's learned Counsel did not try to repeat that contention before us. THE one and the sole point urged before us to nonsuit the plaintiff was that the plaintiff had by his notice Ext. B issued to defendants 1 to 3 abandoned his claim for specific performance of the contract and elected to limit his remedy to claim damages instead. No doubt the written statement filed on behalf of defendants 1 to 3 raises such a defence and what the appellant is now doing is to abandon the defence he himself raised and try to depend upon a plea raised by his vendors. THEre is nothing to preclude him from adopting such a course but we are afraid Ext. B does not lend itself to the construction sought to be put upon it. It states that the plaintiff is ready and willing to perform his part of the contract and invites defendants 1 to 3 to go over to the office of the sub-Registrar, Moovattupuzha, on 30. 2. 1119 to have the conveyance executed and registered and to receive the balance consideration payable as per the terms of the agreement. It further states that in the event of defendants failing to comply with the request the plaintiff will be taking such action as he is advised to take and that the defendants (defendants 1 to 3) and the properties will be held liable for all his losses and damages. Reading the notice as a whole all that it intends to convey is that unless defendants 1 to 3 execute the conveyance as agreed to, the plaintiff will file a suit and that the defendants will be liable for all consequences thereof. THE plaintiff has not stated that he will be content with receiving damages. THE written statements the defendants filed in the suit as also the memorandum of appeal filed before this court on behalf of the appellant proceed as if the provision for liquidated damages in a contract of sale would preclude a party thereto from seeking specific performance thereof. This is a wrong assumption as would be clear from S. 20 of the Specific Relief Act. Further S. 19 provides that any person suing for the performance of a contract may also ask for compensation for his breach, either in addition to, or in substitution for, such performance. Viewed in the light of these provisions occurring in the Specific relief Act and the language of Ext. B we cannot persuade ourselves to accept the construction sought to be put upon the notice Ext. B by the appellant's learned Counsel that there is a definite abandonment there of the plaintiff's right to seek specific performance.

(3.) THE lower court's direction is that defendants 1 to 3 should execute the conveyance and that in the event of their failure the court will execute it. Reference has already been made to the decision in ILR 1916 (40) Bom. 498 which states that in circumstances similar to the present it is the subsequent vendee who should be asked to execute the conveyance. He obtains title by the sale in his favour, no doubt voidable at the instance of the person in whose favour there was a prior contract of sale. Besides the decision referred to other cases have also laid down that the proper decree in a suit for specific performance of a contract to sell land when the same has been sold to a third party subsequent to the contract with the plaintiff is to direct the subsequent purchaser to execute a conveyance to the plaintiff. See Subhitha pillai v. Velappa Naickan 1911 (22) MLJ 124 and Gaurishankar v. Ibrahim - AIR 1929 Nag. 298 at page 303 and foot-note (n) on page 716 of Pollock and Mulla indian Contract and Specific Relief Acts, Seventh Edn. In this case however there is some dispute whether defendant 4 the appellant got under his conveyance exhausts the properties covered by Ext. A. In modification of the direction contained in the lower court's decree we therefore direct that the conveyance in favour of the plaintiff will be executed by defendants 1 to 4 and that the court will execute it in case they do not do it within two months of the receipt of the records from here by the lower court.