GOPI NATH SEN Vs. BAHADURMUL DULICHAND

JUDGEMENT

(1.) It is settled law that the plaintiff in a suit for specific performance must be ready and willing to perform his part of the contract not only up to the date of the suit but at least upto the completion of the trial.

(2.) In this case of specific performance in course of the trial Dulichand a partner of the respondent firm in course of bis examination in chief as a witness on behalf of the plaintiff was asked in question 71 as follows :-- Q. "Are you still ready and willing to take the lease from the defendant?" His answer was: "No. At present we claim the damage only". The question arose if this was permissible under the law. Could the plaintiff have waived or abandoned the claim for specific performance and claimed damages simpliciter in lieu thereof? Such a question arose in the case of Ardeshir Mama v. Flora Sassoon 55 Ind App 360; (AIR 1928 PC 208). In that case also the plaintiff by his conduct debarred himself from the relief of specific performance and tried to convert the suit for specific performance into that of a suit for damages. The question is: has the plaintiff such power to convert the suit for specific performance into that of a suit for damages simpliciter.

(3.) In my opinion, the principle under which damages will be awarded under Section 73 of the Indian Contract Act will be different from the principle involved in damages which will be awarded in lieu of specific performance. In the case of damages in lieu of specific performance the same does not result directly or consequentially from out of a breach of a contract as is the cask under Section 73 of the Indian Contract Act. There might be circumstances when the plaintiff might be entitled to specific per-formance but the Court in its discretion might find that in the special facts of the case the plaintiff should not be awarded specific performance of the contract; but if damages would be awarded in lieu or in substitution thereof then that would amount to granting of a suitable relief. In other words the Court must be in a position to consider that the plaintiff was otherwise entitled to claim specific performance. If that condition would not be fulfilled then there could be no question of the court's exercising that power of granting relief by way of damages in lieu thereof. The expression "in lieu of specific performance" means and signifies that the relief by way of damages is granted in place of specific performance or in substitution thereof so that adequate relief might be awarded to the plaintiff who was otherwise entitled to such specific performance. Once the plaintiff would abandon his case of specific performance then that would be an end of the matter so far as the relief by way of damages in lieu of specific performance was concerned. As observed herein above, he must not only be ready and willing to perform his part of the contract up to the date of the filing of the suit but also during the continuance thereof so that the Court would be in a position to consider the case of granting relief by way of damages in lieu of specific performance even at the time of the passing of the decree.