P BHASHYAKARLU NAIDU Vs. NUNGAMBAKKAM ANDALAMMAL

JUDGEMENT

(1.) This is an application to revise a decision of the Full Bench of the Court of Small Causes, Madras, which came before me yesterday and was referred to a Bench. It raises the question whether the plaint discloses a suit for specific performance of a contract to sell land. If it does, then admittedly the Court of Small Causes had no jurisdiction. Ordinarily of course, a suit will not lie for specific performance of a contract to pay money. But the case of the vendor, as pointed out in Fry s Specific Performance, page 33, is an exception to that rule, and the Court will grant the vendor specific performance of his contract against the purchaser; and the form of the decree in such a case will be found in Morgan v. Briscoe (1886) 31 Ch. D. 216 and is set out in Seton s Judgments and Orders, Volume III pages 2174 and 2175. The form is that the plaintiff is to be at liberty to prepare and execute a conveyance to the defendant as an escrow to be delivered to the defendant on payment of the purchase money within the time limited, and that the defendant is to pay the purchase money after the conveyance is ready. It was stated that there was a difficulty about this in India, as under the Stamp Act the money for the purchase of stamp has to be found by the vendee. But this presents no real difficulty, as the duty may be paid by the vendor and added to the purchase money which the vendee has to pay under the decree.

(2.) That being so, we have to look at this plaint and see whether it is framed so as to disclose a suit for specific performance. In the passage cited to us in Halsbury s Laws of England, Vol. 27 page 83, it is stated that the vendor in a suit for specific performance must declare that he is ready and willing to execute a conveyance. In paragraph 3 of the plaint, the plaintiff recites a contract by which the defendant bound himself to pay the sum therein mentioned as soon as the High Court of Madras reopened after the summer vacation in July 1914, the plaintiff on her part undertaking to re-convey the said properties to this defendant by executing a conveyance in his favour and getting it registered. Paragraph 5 of the plaint says that the plaintiff avers that she is even now ready and willing to perform her part of the contract. Although the prayer only asks for the payment of Rs. 301-13-0, taking the plaint as a whole with the averment that the plaintiff is ready and willing to perform her part of the contract, I think it must betaken as a prayer for specific performance. That is sufficient to dispose of the present case.

(3.) The question has been argued before us, whether, supposing the contract between the parties stipulated for payment by the vendee first and execution of the conveyance by the vendor afterwards, that would make any difference. I am disposed to think it would not, and that the plaint would still be for specific performance of the contract, and the proper decree in such a case would be a direction that the defendant should pay followed by a direction in the decree that the conveyance should be executed after payment. The distinction, it seems to me, is whether the suit is to be regarded as a suit for money payable under the contract, in which case it is strictly a suit for specific performance, or as a suit for damages. As I read the plaint, I think it is clear that the plaintiff has prayed for specific performance and therefore the petition must be allowed, and the decree of the Small Cause Court set aside, and the plaint returned for presentation to the proper court. Costs to abide. Seshagiri Aiyar, J.