RAJYA TULSIBHAI PATEL Vs. BANNER ENTERPRISE

JUDGEMENT

(1.) The appellant-plaintiff filed a Suit No. 238 of 1984 in the City Civil Court Ahmedabad for specific performance of the contract dated 15/12/1980 and in the alternative for damages occasioned on account of breach of contract. The case set up in the plaint was that the first defendant Messrs Banner Enterprise partnership firm had floated a scheme for the construction and sale of industrial sheds on Final Plot No. 10-E of Rakhial Town Planning Scheme No. 10. The plaintiff met the organisers of the scheme and after knowing the terms and conditions thereof booked Shed No. 1 admeasuring 50 sq. yards for a price of Rs. 50 0 70 per cent whereof was to be met through a loan to be arranged by the defendants. Accordingly out of the total price of Rs. 50 0 a sum of Rs. 35 0 was to be paid through Government loan and the balance of Rs. 15 0 was to be paid by the plaintiff to the defendants the organisers of the scheme. The plaintiff paid an amount of Rs. 9 0 by four instalments the first three dated 15/12/1980 and the last dated 17/01/1981 under separate receipts issued by the defendants. According to the plaintiff the balance amount was to be paid after the commencement of the construction of the shed.

(2.) On 24/05/1981 the foundation stone was laid and thereafter the plaintiff made inquiries from time to time as to when the construction was to commerce but he was given evasive replies. However on 15/03/1982 he received a letter from defendant No. 6 Messrs Banner Industrial Estate Limited informing him that he was enrolled as a shareholder of that firm. The plaintiff states that this was done without his consent. He further states that thereafter when an explanation was sought as to how such a change could be brought about without the consent of the shareholders of defendant No. 1 evasive replies were given and when he insisted on knowing when the construction would start a substantial amount without receipt was demanded from him. The plaintiff and three other members objected to the same and inserted a public notice in a local daily through an advocate dated 24/12/1982 to which defendant No. 1 gave a reply dated 27/12/1982 which was countered by an explanation dated 1/01/1983 The plaintiff contends that the first defendant had with a view to defeating the claim of the plaintiff and others introduced a change in the name of the firm and in order to protect his rights for claiming Shed No. 1 on payment of the balance amount under the contract the suit in question was instituted. In paragraph 8 of the plaint all these events have been stated as constituting the cause of action. In the relief clause paragraph 14(A) it is reiterated that out of the total amount of Rs. 50 0 Rs. 35 0 were to be raised through Government loan and the balance of Rs. 15 0 was to be paid by the plaintiff to the defendants towards which Rs. 9 0 have already been paid. The plaintiff further stated in the relief clause that the defendants should be directed to receive the balance of Rs. 6 0 and execute a sale deed in his favour for Shed No. 1 after arranging for a loan of Rs. 35 0 which he was and is ready and willing to repay by reasonable instalments as may be fixed. On these averments the plaintiff claimed specific performance of the contract dated 15/12/1980 and in the alternative damages for breach of contract amounting to Rs. 30 0

(3.) During the pendency of the suit the plaintiff filed an application Exhibit 53 seeking to amend the plaint with a view to inserting a statement in the plaint to the effect that the plaintiff was always ready and willing to perform his part of the contract. The learned Judge in the City Civil Court relying on the decision of the Supreme Court in Prem Raj v. D. L. F. Housing & Construction (Pvt.) Ltd. AIR 1968 SC 1355 came to the conclusion that absence of averment as to readiness and willingness to perform his part of the contract tentamounts to absence of cause of action which is fatal to the suit in view of sec. 16 (c) of the Specific Relief Act. He also came to the conclusion relying on the decision of the Allahabad High Court in Mahmood Khan v. Ayub Khan AIR 1978 All. 463 that a valuable right to have the suit dismissed which had accrued to the defendants because of the absence of such an averment in the plaint would be lost if the amendment is allowed. He further observed that under Art. 54 of the Limitation Act 1963 a suit for specific performance must be brought within three years from the time the plaintiff has notice about the refusal of the performance. Pointing out the averment in paragraph 8 of the plaint the learned Judge observed that the plaintiff had knowledge of the fact that the defendants had committed a breach of the contract sometime in May 1982 or in any case on 24/12/1982 and hence the suit had to be brought on or before 24/12/1985. Stating that it was settled law that an amendment if and when granted relates back to the date of the institution of the suit and therefore if the amendment application dated 5/09/1986 is granted a valuable right which had accrued to the defendants for non-suiting the plaintiff would be lost because the application for amendment was made after 24/12/1985. On these considerations the amendment application was rejected by his order dated 19/09/1986. Thereafter on 26/09/1986 the learned trial Judge rejected the plaint under Order 7 Rule 11(a) of the Code of Civil Procedure on the ground that it did not disclose any cause of action. He also negatived the plea that the suit in regard to the relief for damages was maintainable on the ground that the relief for damages was claimed in lieu of specific performance of the contract and not alternatively or in addition to the relief for specific performance. In his view the relief for damages in lieu of specific performance could be granted only in those cases in which the plaintiff was entitled to specific performance and not otherwise. Since the cause of action for specific performance was wanting the question awarding damages in lieu thereof did not arise and hence the learned trial Judge held that the suit was not maintainable and rejected the plaint as stated above. Since the suit failed on a technical ground of non-disclosure of cause of action the parties were directed to bear their own costs. It is against the aforesaid order of the learned trial Judge that the original plaintiff has preferred this appeal.