PONTHALA VENKATARAMANA Vs. RATAKONDA NARAYANA

JUDGEMENT

(1.) The first defendant in O.S.No.19 of 1976 on the file of the Sub-Court, Madanapalle, is the appellant against the reversing judgment and decree in A.S.No.245 of 1982 wherein the suit brought by the respondent for specific performance of an agreement of sale, dated 12-12-1975, was decreed as per the amendment of the plaint allowed on 26-8-1988. Simply stated, the facts are that the agreement was executed between the parties for purchase by the respondent of two items of property - the first - two acres of land out of a total extent of Ac.7-30 cents in Sircar Punja D.No.420/12 covered as per orders in I. A. No. 704 of 1978 being the property belonging to the first wife of the appellant and the second - Ac. 1-30 cents of Sivaijama land of which no survey number was given but was identified by specified boundaries. The total consideration payable was Rs.17,900/- of which Rs.2,900/- was received on the date of the agreement as advance with the stipulation that the balance was to be paid and the sale deed executed on or before 15-3-1976. The suit was instituted by the respondent on 15-3-1976 itself with the averment that one Bheema Naik had given registered notice to him objecting to the sale of the Sivaijama land as the appellant had no title to that property and that hence, as the appellant had no title to that item of the property, relief was claimed for a decree against the appellant to execu te sale deed only in respect of two acres of land out of the first lot of property, or in the alternative to direct the appellant to execute sale deed for Ac. 3-30 cents from only the first lot of property i.e., D.No.420/12. The suit was resisted with written statement filed averring, while admitting the execution of the agreement and receipt of the advance of Rs.2,900/- that Bheema Naik had no title to the Sivaijama land and that the suit was to be dismissed as the respondent was not willing to perform his part of the contract. The trial Court found the stand of the respondent of the appellant having no title to the Sivaijama land untenable and that no title of the land in Bheema Naik was established. It found the respondent disentitled to the relief he being not ready and willing throughout to perform his part of the contract, since he was not willing to purchase Ac. 1-30 centers of land from the Sivaijama land and instead had claimed either to purchase only two acres of land in D.No.420/12, or to purchase the entire Ac3-30 cents of land only from D.No.420/12. In the appeal preferred by the respondent an amendment is stated to have been allowed on 26-8-1988 to amend Paragraph 4 of the plaint by adding" the plaintiff is willing to purchase Ac.2-00 of land by paying the entire sale consideration of Rs.17,000/-". The respondent had deposited the entire consideration money on 6-10-1981, pursuant to the direction of the trial Court. The learned single Judge allowed the appeal on the same day and decreed the suit applying the provisions of Section 12 (3) of the Specific Relief Ac t, 1963 (for short "the Act') holding the appellant not able to perform the part of the contract relating to Ac. 1-30 cents out of the Sivaijama land being unable to sell it and hence the respondent as being entitled to purchase the two acres out of D.No.420/12 in respect of which the sale deed was capable of being executed by the appellant and the respondent was willing to pay the whole of the consideration money of Rs.17,900/- for that land. The only question to be considered, hence, in the context of the case, is whether the benefit of Section 12 (3) of the Act is available to the respondent to entitle him to purchase only two acres of land paying the entire balance consideration of Rs.15,000/-.

(2.) The law of specific performance is statutory recognition of principles of equity for which the right to claim such performance is subject to the discretion of the Court depending upon the equities of the fact situation of each case. So far as the benefit of Section 12 (3) is concerned it is available only in the circumstances specified in the Section. The provisions of Section 12 (3) may be usefully extracted: "12. Specific performance of part of contract:- (1) Except as otherwise hereinafter provided in this section, the court shall not direct the specific performance of a part of a contract. (2)......... (3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either- (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party- (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b) pays or has paid the consideration for the whole of the contract without any abatement, and (ii) in either case relinquishes all claims to the performance of the remaining part of the contract and all rights to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. 4...........

(3.) While the Section in the opening words mandates the refusal of specific performance of a part of the contract, yet permits part performance to the extent exempted in the subsequent clauses of which clause (3), which is relevant to the present case, is that if one party hasbeen unable to perform the whole of his part of the contract and the unperformed part constitutes a substantial part of the whole of the contract and either admits of compensation in money or does not admit of such compensation, the defaulting party is not entitled to specific performance but if a suit is brought by the other party, the court may direct the defaulting party to perform specific performance of that part of the contract which is performable, if the plaintiff pays or has paid the whole of the consideration under the agreement and relinquishes all claims to the performance of the other part of the contract and all rights to compensation etc. The ingredients which stand out in making the provision applicable are that one party to the contract must have been unable to perform a part of the contract he is a defaulting party to that extent, and that despite the default, the other party to the contract must, in a suit instituted by him for specific performance, either pays or has paid the whole of the agreed amount, for only that part of the contract which is capable of being performed by the defaulting party. Unless such ingredients a re present, the relief under Section 12 (3) of the Act cannot be claimed. Apart from such considerations, the questions which otherwise arise are also the questions of delay and laches and indication by the plaintiff of his being been throughout ready and willing to perform his part of the contract which facts if are not present, the relief may be refused.