TMI Blog2004 (8) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... ance/earnest money towards the sale consideration. As the appellant failed to execute the sale deed the respondent on 26.4.1995 filed a suit being O.S. No. 458 of 1995 in the Court of III Additional Sub-Judge, Ernakulam for specific performance of the agreement dated 20.10.1994. Appellant filed the written statement. The suit was decreed on 24.7.1997 in the following terms: 1. That the defendants shall cause the plaint schedule property be sold in terms of Ext. A4 sale agreement dated 20.10.94 within three months from the plaintiffs depositing the balance sale consideration with the court after causing the property to be measured and satisfying the plaintiff about the measurements and complying the requirements under the Indian Income Tax rules and Act obtaining necessary sanction and permission and certificate from the authorities under the Income Tax Act. It is made clear that it shall not be the duty of the plaintiff to inform the defendant about the deposit of the balance sale consideration with the court and it is for the defendant to make enquiries with the office and ascertain as to whether the balance sale consideration was deposited by the plaintiffs with the court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court disposed of IA Nos. 5187 of 1997 and 851 of 1998 by a common order dated 15.10.1999. Both the IAs. were allowed. The actual extent of land held by the appellant worked out to be 14.179 cent instead of 15.125 cents mentioned in the agreement of sale. It was held that the respondents were entitled to recover the sum of ₹ 12,77,870 by way of compensation which included the costs awarded in the suit, excess amount deposited and interest by way of compensation on the sale consideration. Respondents were permitted to recover the amount of ₹ 12,77,780 from the amount lying deposited in the Bank. The break up of the sum of ₹ 12,77,780 under various heads for payment to the respondents was worked out as under : 1. Costs decreed to the plaintiffs : ₹ 3,09,093.00 2. Survey Expenses: ₹ 2,650.00 3. Excess amount deposited by The plaintiff ₹ 16,065.00 4. Interest on excess amount of ₹ 16,065 from 23.10.1997 To 17.8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a breach. It was further contended that the learned Single Judge committed a factual error in observing that in Purushothaman (supra) the plaint had not been amended in terms of Section 21(5) of the Act. According to him, in Purushothaman (supra) the plaint had been amended to claim the relief of compensation. That the sum of ₹ 3,09,093 towards the cost in the suit could not be included while working the amount of compensation under sub-section (5) of Section 21. Such costs could be recovered by the respondents by filing an execution application for recovery of the cost and the same could not be recovered as a part of compensation payable in addition or in substitution of the relief of specific performance. Counsel appearing for the respondents controverted the submission made by the counsel for the appellant and supported the findings recorded by the High Court. Section 21 of the Act reads : 21. Power to award compensation in certain cases : (l) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. (2) If, in any such suit, the Court decides that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 of the Contract Act, 1872 while determining the amount of compensation. Sub-section (5) of this Section is new. It provides that the compensation under this Section shall not be awarded unless the plaintiff has claimed it in the plaint. An important rider has been attached to this sub-clause which is to the effect that the Court shall, at any stage of the proceedings, permit the amendment of the plaint to enable the plaintiff to include his claim for compensation on such terms, as the Court may deem fit. Explanation to this sub-section re-enacts the language of the old explanation without any change. Illustrations under Section 19 have been deleted. Reasons for recommending the changes have been given by the Law Commission of India in its Ninth Report on the Specific Relief Act, 1877. Since in the present case, we are considering whether the compensation could be awarded in a suit for specific performance without making a claim of compensation either in the original plaint or by amending the plaint during the course of the proceedings, we would refer to the suggestions made by the Law Commission for the enactment of such-clause (5) only. Sub-sections (4) and (5) of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal plaint the respondents did not claim compensation for the breach of agreement of sale either in addition to or in substitution of the performance of the agreement. Further the respondents did not amend their plaint and ask for compensation either in addition to or in substitution of the performance of the agreement of sale. Sub-Section (5) of Section 21 emphatically provides that no compensation shall be awarded under section 21(5) unless the relief for compensation has been claimed either in the plaint or included later on by amending the plaint at any stage of the proceedings. The need to file an execution petition did not arise as the appellant executed the sale deed on 17.8.1999. We have perused the application filed by the respondents. It is a simple application filed under Section 28(3) of the Act seeking permission to ascertain the extent of plaint schedule property by measuring the same with the help of Village Officer or by deputing an Advocate Commissioner and directing defendant/appellant to obtain 'no objection certificate' from the Department of Income Tax, in addition the respondents prayed that they be permitted to recover interest @ 12% towards loss o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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