FLOR A SASSOON Vs. ARDESHIR HMAMA

JUDGEMENT

(1.) After stating facts the judgment held that there was no concluded contract between the parties but that on this assumption that there was a concluded contract, the lower Court had not correctly interpreted the law regarding damages claimed in the alternative in a suit for specific performance of an agreement for the sale of immovable property and proceeded further after reproducing Section 19 of Specific Belief Act). It is important to note that the word "compensation " is used and not damages" and although a person suing for specific performance may ask for compensation in substitution for specific performance, that prayer is subsidiary to the claim for specific performance and not strictly speaking alternative. In my [opinion the second paragraph of the section shows that it is for the Court to decide whether specific performance should be granted, and, if not, what compensation should be awarded. The measure of compensation is entirely in the discretion of the Court and I think the word compensation was used by intent to emphasize the fact that the Court in awarding compensation was not bound to follow the ordinary rules with regard to damages for breach of contract. J do not think it was the intention of the Legislature in framing Section 19 of the Specific Belief Act to depart from the law as then existing in England after the passing of the Judicature Act, 1873, as set out by Fry on Specific Performance, 6 edition, page 604, para. 1306: The Court, therefore, can now give damages in any of the following cases, viz.: (i) In substitution for specific performance where there is a case for specific performance - under Lord Cairn's Act. (ii) Where there is no case for specific performance - under the Judicature Acts. (iii) In addition to specific performance in whole or in part - under Lord Cairns Act, and probably under the Judicature Acts. Accordingly, a plaintiff may now come. to the Court and say : Give me specific performance, and with it give me damages, or in substitution for it give me damages, or if I am not entitled to specific performance give me damages as at Common Law by reason of the breach of the agreement.

(2.) And para. 1307: The Court's jurisdiction in damages is an apt and flexible instrument for doing exact justice under the diverse and complicated circumstances of many of the cases upon which the Court has from time to time to adjudicate.

(3.) No reference is made by the 1 arned author to the possibility of a plaintiff , suing for specific performance or in the alternative for damages, deliberately at or before the hearing refusing to continue his prayer for specific performance. The words I have italicized seem to limit the claims for damages to those cases in which the Court thinks that specific performance should not be granted.