LAWRENCE Vs. XAVIER

JUDGEMENT

(1.) The plaintiff is the revision petitioner, The C.R.P. is filed against the order in I.A. 4594/97 in O.S. 83/97 of the Subordinate Judge's Court, Thrissur. The suit was filed for specific performance of the contract to sell the plaint schedule property to the plaintiff. The case of the plaintiff is that himself and defendants entered in to a contract to sell the plaint schedule properties to the plaintiff for an amount of Rs. 41,23,000 on 18th March 1996 and an advance of Rs. 2 lakhs was given on 18th March 1996. Another advance of Rs. 3 lakhs was given on 15th April 1996. Thus on the whole an advance of Rs. 5 lakhs has been given to the defendants. The of the plaintiff of to the nominees of the plaintiff. According to the plaintiff, since the defendants were not willing to execute the sale deed, notice was issued. On receipt of notice, the defendants gave a reply stating untenable contentions. That is way the suit was filed. The plaintiff had averred in the suit that he was ready and continued to be ready for performing his part of the agreement. In the suit as a relief: He had prayed (a) for sale deed of the plaint schedule property to the plaintiff after receiving the balance amount or alternatively he had prayed for return of the advance amount of Rs. 5 lakhs and for damages to the tune of Rs. 12 lakhs. The plaint was filed on 24th February 1997. Subsequently a written statement was filed by the defendants. In the written statement defendants raised a contention that they were always willing to perform their part of contract and that it was the plaintiff who committed breach of contract. Hence a counter claim was raised in the written statement. In the counter claim, the defendants had prayed for a decree of Rs. 80,50,163. The written statement was filed on 23rd June 1997. Subsequently in October 1997 the application for amendment of the plaint was filed. In the affidavit accompanying the application for amendment, it is stated that the plaintiff had agreed to sell plots to third person on the basis of the agreement executed with the defendants. Since the defendants did not execute the sale deed in time, the prospective purchasers have gone back. Because of this development, the plaintiff" is not in a position to honour the contract. He had stated that he is not at present ready and willing to perform his part of the contract. Hence he wanted to amend the plaint by deleting the prayers for sale of the property and for granting him Rs. 17 lakhs. Instead of that, according to him, he is entitled to damages for breach of contract. Hence he has prayed for a decree for Rs. 7 lakhs which includes Rs. 5 lakhs given as advance. This was objected to by the defendants. Learned Subordinate Judge after hearing both the parties has dismissed the application for amendment. It is against that, the present C.R.P. is filed.

(2.) In the impugned order the court below says that the defendants had agreed to perform the contract in the written statement. Therefore the return of advance amount is only an alternative prayer. The plaintiff has already found fault with the defendants for not assigning the property and the suit was filed for that purpose. So when the defendants expressed their willingness, the plaintiff cannot withdraw the same and seek another remedy. Further the court below has also referred to the fact that there was a petition filed by the defendants directing the plaintiff to deposit the balance amount. Eventhough an order has been passed to that effect, the plaintiff has not deposited that amount.

(3.) Learned counsel for the petitioner' Sri Ranjith Thampan contended that the plaintiff has got a choice either to pray for damages for breach of contract or ask for specific performance. Merely because earlier he had asked for specific performance, it does not prevent him from praying for a relief for damages for breach of contract. Further he stated that under S.23 of the Specific Relief Act, if the suit is dismissed, he will not be able to file suit for damages.