ARDESHIR H MAMA Vs. FLORA SASSOON

JUDGEMENT

(1.) This suit, commenced on January 10, 1920, in the High Court of Judicature at Bombay, was, in its inception, a simple action by a purchaser for the specific performance of a contract for the sale of certain valuable hereditaments on Malabar Hill in Bombay with claims for damages additional or alternative all in terms of Section 19 of the Specific Belief Act, 187 7. The defences to the suit wore that there never had been any concluded contract for the sale of the property : if there had been such a contract it had been entered into on behalf of the defendant by an agent with no authority to bind her to its terms. There is in the defendant's written statement no suggestion that the plaintiff's right was not a right to specific relief, if any existent contract binding upon the defendant was established. And the case, indeed, was one in which upon proof by the plaintiff of the facts alleged by him, he became entitled as of right under Section 12(o) of the Act to the specific relief which he sought.

(2.) But that right of the plaiutiff would be dependent upon his having been himself up to the date of decree ready and willing to perform the contract on his part and in para. 9 of his plaint ha alleged that he had throughout been so ready and willing : an allegation which imports a continuous readiness and willingness up to the time of the hearing: see per Lord Selborne in Hipgrave V/s. Case (1885) 28 Ch, D, 336, 361.

(3.) On March 19, 1924, nine months or more before the trial, the plaintiff's solicitors formally notified the defendant to the effect that the plaintiff had decided to abandon his claim for specific performance; that he would instead, at the trial claim damages against the defendant for her breach of contract, and that he assessed these damages at Rs. 7 lacs. By that time, the plaintiff, as explained to the Board by his counsel, had found it inconvenient any longer to retain in readiness for completion of the purchase the money payable under the contract, and this was the explanation of his decision to convert his claim against the defendant into one of a character which could be successfully maintained without further financial strain upon himself. Their Lordships do not doubt the correctness of his statement, but they are not convinced that the glittering prospect of very heavy damages claimable in the special circumstances of the case may not largely have influenced the plaintiff's decision.