Somasundaram Chettiar v. Chidambaram Chettiar

(Delivered by the Chief Justice)

This appeal arises out of a suit filed by the respondent for specific performance of an agreement to assign the decree in O.S No. 208 of 1932 on the file of the Court of the Subordinate Judge of Devakottai obtained by the appellant as a result of the decision of this Court in A.S No. 237 of 1934. The agreement was dated 17th December 1942 and there is now no dispute that it was executed by the defendant who had full knowledge of what he was doing. In his evidence he admitted that though he was not originally agreeable to execute the deed of assignment of the decree, he eventually agreed to do so and executed the agreement, Ex. P. 2. There was an attempt in the Court below to establish a case of coercion which vitiated the agreement, but the attempt altogether failed. On a perusal of the evidence of the defendant himself and the other three witnesses examined on his behalf, there is no doubt left in our minds that the agreement was duly executed by the defendant and was intended to be acted upon. The defendant's case was that the transaction was frought about at the instance of two of the judgment debtors in O.S No. 208 of 1932 and the plaintiff was merely a name lender. Very probably it was so; but we fail to see how that fact can have any material bearing on the rights and liabilities of the parties to this suit.

The defendant acknowledged in P. 2 receipt of Rs. 13,100 the consideration for the assignment of the decree. But his case as developed in his evidence was that out of this amount only Rs. 11,100 had been received by him from P.W 1, Raman Chettiar. The burden lay heavily on the defendant to establish his case in view of the express acknowledgment in Ex. P. 2. The amount of Rs. 11,100 was alleged to have been paid in three instalments by cheques but no attempt was made to have the cheque produced nor were the accounts of the defendant produced to show that the amounts were received as alleged towards the agreement to assign the decree and not in respect of dealings between the defendant and Raman Chettiar. In the absence of reliable evidence in proof of the defendant's case, it must be held that the full amount of consideration recited in Ex. P. 2 was paid to the defendant. There is really no defence to the suit for specific performance which was rightly decreed by the Court below.

The learned Subordinate Judge, in addition to the relief of specific performance which he granted to the plaintiff, also awarded him Rs. 1000 as damages sustained by him on account of the breach of contract on the part of the defendant. In the plaint there was no specific prayer for the award of damages in addition to the grant of specific performance. There was an alternative plea that in case the specific performance was not ordered, the defendant may be directed to refund the sum of Rs. 13,100 with interest at 6 per cent per annum from 17-12-1942 as also Rs. 2000 as damages for loss of profits. The defendant was therefore not called upon to meet the plaintiff's claim for damages in addition to the grant of specific performance. The learned Judge, however, thought that this did not matter and that the failure to ask for damages in addition to the substantive relief of specific performance would not disentitle the plaintiff to damages being granted. He relied on the ruling in The Arya Pradeshak Pritinidhi Sabha v. Lahori Mal(1), in support of his conclusion. No doubt that decision appears to lay down, though the report is very meagre, that the plaintiff in a suit for specific performance can be awarded damages not only in lieu of but in addition to specific performance even though the plaintiff might not have specifically prayed for such a relief. As authorities for this proposition the learned Judges cited the rulings in Callianji Harjivan v. Narsi Tricum(2) and Kalliandas v. Tulsidas(3), but in neither case was there an award of damages in addition to the grant of specific performance. The learned Judges applied the principle on which these decisions rested on the ground that the Code of Civil Procedure conferred ample discretion upon the Court in the matter of granting appropriate relief. In the absence of any direct authority, with great respect to the learned Judges who decided the case in the Arya Pradeshak Prithinidhi Sabha v. Lahori Mal we think that it is neither equitable nor legal to award damages in addition to the relief of specific performance to a plaintiff who has not chosen to ask for such relief of damages. S. 19 of the Specific Relief Act lays down that any person suing for the specific performance of a contract may also ask for compensation for its breach, either in addition to, or in substitution for, such performance. It then provides for cases in which the Court decides that specific performance ought not to be granted and cases in which the Court decides that specific performance ought to be granted. In the latter case, it provides that some compensation for breach of contract should also be made to the plaintiff if in its opinion it is not sufficient to satisfy the justice of the case. But there must be an allegation by the plaintiff that having regard to the particular facts and circumstances of the case, the mere grant of specific performance would not satisfy the justice of the case. When such an allegation is made by the plaintiff, the defendant would have a fair opportunity of convincing the Court that there are no facts and circumstances which would render it just to award damages in addition to specific performance. Then again, the defendant ought to be put on notice that a particular amount is being claimed by the plaintiff for damages on this ground and it must be open to the defendant to adduce evidence that the damages claimed are excessive or that the plaintiff has not sustained any damages. In this case the award of Rs. 1000 as damages is quite arbitrary. There is no evidence that the plaintiff would suffer loss to this extent because of the conduct of the defendant in refusing to specifically perform his contract. For all these reasons we consider that there is no justification for the award of Rs. 1000 as damages in addition to the grant of specific performance.

Mr. V. Ramaswami Aiyar, the learned Advocate for the respondent, wanted that the decree of the lower Court may be varied by awarding him the alternative relief claimed by him, viz., the refund of the sum of Rs. 13,100 with interest and Rs. 2000 as damages. It was quite open to the respondent to have abandoned his claim for specific performance and to have prayed for the alternative relief only before the Court below. He certainly had the option of choosing one of the alternative claims. But he was evidently quite satisfied with pressing for the relief of specific performance and he did obtain that relief. Till his learned Counsel began his argument before us there was no mention that the respondent wanted the alternative relief in lieu of specific performance. No authority was cited to us that the appellate Court is bound to accede to this demand by the plaintiff even after the decree of the lower Court. In the absence of any indication till the time of the arguments that the plaintiff had changed his mind and had decided to choose the alternative relief other than what was granted to him by the Court below, we are not inclined to grant this request.

The appeal is allowed to the extent of Rs. 1,000 awarded as damages but is otherwise dismissed. The parties will pay and receive proportionate costs in this appeal.

N.R.R