RAMIAH BAGAVATHAR Vs. SOMASI AMBALAM

JUDGEMENT

(1.) My learned brother has stated the facts. It is only necessary to refer to the exact finding arrived at by the District Judge. He finds that the settlement come to at the time of withdrawing the first suit was to substitute a different piece of land for the one which was originally agreed to be conveyed. The consideration was to be the same, and there was to be no change in the parties to the contract.

(2.) Mr. Devadoss contends that Section 62 of the Contract Act does not apply to such a case. On the finding as stated by me, there has been no breach of the contract, but only a variation with the consent of the parties in one of the essential terms. The suit, which complained of default in the performance, ended in this adjustment. There is no finding that the contract was really broken. If Mr. Devadoss premises are correct, namely, that there was a breach of the first contract, I would have agreed with him that Section 62 will not help the defendant. The case of Manohur Koyal v. Thakur Das Naskar 15 C. 319 will then be directly in point. Mr. Muthukrishna Aiyar has not convinced me that this decision is wrong. Section 62 contemplates that the original contract subsists and that the parties have agreed to re-place it by a new contract. The language suggests that the contract is to be put an end to with the consent of both the parties when the substitution, rescission or alteration takes place. Section 63, on the other hand, deals with cases where there has been a breach of the contract. No doubt, as pointed out by Mr. Justice Subramanania Aiyar in the case of Davis v. Cundasami Mudali 19 M. 398 : 6 M.L.J. 220 this section refers to unilateral acts, whereas under Section 62 the concurrence of both the parties is required. That is not the only distinction between the two sections. It is pointed out that both the sections find place under the heading "Contracts which need not be performed." I do not think this can afford any assistance in the construction of the sections. The English authorities which recognise the distinction between promises made before breach and those after breach, must have been present to the minds of the framers of the Contract Act. As at present advised, I am not prepared to dissent from the view taken in the case of Manohur Koyal v. Thakur Das Naskar 15 C. 319. But it is not necessary to discuss this subject any further.

(3.) I think the judgment of the District Judge can be supported on another ground. To the claim for specific performance made by the plaintiff, defendants reply is that there has been a subsequent agreement to vary one of the terms of the contract by substituting another piece of land for the one already agreed upon. This defence is covered by Section 26 (e) of the Specific Belief Act. That clause does not permit of a plea which sets up the abandonment of the first contract. It can be availed of only in cases of variation and, as I said before, the pleadings and the finding of the District Judge show that this is a contract of that description. I am unable to agree with the contention of the learned Counsel for the appellant that Section 26 (e) will not apply, if one of the parties to the contract has been complained against for default. There is no warrant for such a contention. It is open to argument that even if there has been a breach, Section 26 (e) of the Specific Relief Act would apply, although Section 62 of the Contract Act may not.