ACHHRU RAM Vs. HARI SINGH

JUDGEMENT

(1.) This is a second appeal arising out of a breach of contract for the sale of land. The facts giving rise to this appeal are that on 12-7-1956, defendants Achhru Ram and others agreed to sell 16 bighas of land in village Man Majra for Rs. 3,000/- to Hari Singh. Hari Singh paid Rs. 200/- in advance. The balance was to be paid at the time of registration and the sale deed was to be executed within one week and in default of the execution of the sale deed, the party defaulting was to pay Rs. 500/- as damages. On 17-7-1956, the defendants entered into a sale contract with regard to this very land with one Gurdial Singh and agreed to sell the suit land to him for a sum of Rs. 4,000/-. On 24-7-1956, i.e. within twelve days of the first sale, the plaintiff Hari Singh brought the present suit for specific performance of the contract and in the alternative claimed a decree for Rs. 700/- (Rs. 500/- as the stipulated damages and Rs. 200/- as the refund of the earnest money). The defence raised to this suit was that the plaintiff had rescinded the contract on 16-7-1956, and that he was not ready and willing to perform his part of the contract and that he was not entitled to its specific performance. Both the Courts below have decreed the suit for specific performance on the ground that the defendants were guilty of the breach of contract and that there is no default on the part of the vendee. Against this decision the vendors have come up in second appeal to this Court.

(2.) Mr. Mital for the vendors has strenuously contended before me that the contract in dispute (Ex. PA) provides two alternatives-- (i) to specifically enforce the contract; or (ii) to claim stipulated damages. On reading the contract I find that there is no such alternative at all. There is merely an additional provision made for damages in case of breach. The vendee has nowhere either given up the claim for specific performance or to have agreed in the alternative to claim damages alone in case of breach. Thus on the interpretation of the contract itself Mr. Mittal's argument falls to the ground.

(3.) Mr. Mittal has also referred to C, for the proposition, that where in a contract there are stipulated damages, prayer for specific performance should be refused. I have gone through these decisions and in my opinion they do not lay down what Mr. Mittal wants me to hold and none of these decisions really helps Mr. Mittal. In AIR 1943 Cal 586, the contract itself provided that on the breach of the contract, the contract would come to an end and the only right left to the party who suffered by its breach was a claim to damages. In AIR 1937 Sind 263, both the Courts below had come to a finding of fact that the plaintiff had elected to take damages in the alternative and therefore it was not proper to decree the suit for specific performance. In AIR 1957 Bom 241, it was observed at p. 242: