GRAHAM Vs. KRISHNA CHUNDER DEY

JUDGEMENT

(1.) THIS was a purchaser's suit to enforce under the Specific Relief Act, 1877, a contract for the sale of two plots of land for one sum of Rs. 1,53,000 in the Tollygunj District of Calcutta. The contract required the vendor to make out a marketable title and, in case of failure to do so, bound him to refund the deposit on demand. It also stipulated that, in case of any deficiency in the area or quantity of land, no compensation should be payable by the vendor on actual measurement. There was no general condition either providing for compensation or excluding it. The vendor proved to be unable to make a title to the second plot and the Trial Judge, having offered the plaintiff a decree for the conveyance of the other plot on the terms of Section 15, which offer was refused, dismissed the suit without costs. On the issue of damages for breach of the contract no evidence of material damage was given.

(2.) ON appeal the High Court, considering that the case fell within the terms of Section 16, allowed the appeal but, having before them no evidence of the value or character of the plots beyond the particulars given in the contract, remitted the casa to the Trial Judge, in order that he might take evidence and assess the abatement of price to be allowed in respect of the failure to make title to one of the plots.

(3.) SECTION 17 prescribes that there shall be no grant of specific performance except in cases coming within one or other of the three previous sections. It was not proved that the part of the contract which was left unperformed bore only a small proportion in value to the whole within Section 14, and the purchaser had declined to accept relief on the terms of Section 15. Accordingly, Section 16 (which appears to be novel in the width of the power which it confers) afforded the only ground on which the Court could help him. To make this section applicable it had to be shown that there was a part of the contract, to wit, that relating to plot A, which (a) "taken by itself could and ought to be specifically performed," and (b) "stood on a separate and independent footing" from the other part of the contract, which admittedly could not be performed.