TMI Blog1990 (4) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumari, the person who was to purchase the house, filed the suit on 17-8-1988 under Order 37, Rules 1 and 2 of the Code of Civil Procedure (the Code in short) for recovery of ₹ 8,30,510/- against Roop Chand Chaudhary, the person who was to sell the house. In the break up, recovery of double the amount of earnest money/ advance, plus interest at the rate of 18 per cent per annum on the earnest money/advance was claimed up to the date of the plaint. She also claimed interest at 18 per cent per annum from 18-8-1988 till the date of decree and realisation. 5. On receipt of notice of the suit, the defendant made an application for leave to defend. It is thereafter that the plaintiff filed an application u/O. 6 R. 17 of the Code for amendment of the plaint to seek a decree for specific performance and in the alternative, the relief which was claimed in the original plaint. The application for amendment was opposed by the defendant. The trial Court, by order dated 28-3-1989, allowed the amendment, on the finding that the cause of action would not change, nor would the proposed amendment tantamount to change the nature of the suit. It also observed that the Supreme Court has laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mages could not be allowed. That was not a matter of rule, but on the peculiar facts of that case. 11. The next case is Sundaramayyar v. Jagadeesan, AIR 1965 Mad 85. There the purchaser filed a suit for specific performance of contract, but that relief was declined to him on the ground that before filing the suit, he had sent a registered notice to the seller that since he (seller) had failed to perform his part of the contract, he (purchaser) would be entitled to return of advance and equal sum as damages. Thereafter, another notice was issued to claim specific performance and the plaintiff withdraw the earlier notice to claim refund and damages. On these facts, it was held as under (at pages 86 and 87 of AIR 1965 Mad) : ....It will not be open to a party to a contract, who has once elected to accept the breach assuming there was a breach on the part of the other side to cancel that election and treat the contract as if it were subsisting. We regard the notice dated 22-5-1958 as amounting to a definite abandonment by the appellant of his right to obtain specific performance of the contract. As pointed out by the Privy Council in Ardeshir Mama v. Flora Sasson, ILR 52 Bom 597 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd delivered up to be cancelled, and the Court, if it refuses to enforce the contract specifically may direct it to be rescinded and delivered up accordingly.' 'It is expressly provided by this section that a plaintiff Suing for specific performance of the contract can alternatively sue for the rescission of the contract but the converse is not provided. It is, therefore, not open to a plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance. S. 35 of the Specific Relief Act, 1877 states that the principles upon which the rescission of a contract may be adjudged. But there is no provision in this section or any other section of the Act that a plaintiff suing for rescission of the agreement may sue in the alternative for specific performance. In our opinion, the omission is deliberate and the intention of the Act is that no such alternative prayer is open to the plaintiff. This view is borne out by the following passage in Fry on Specific Performance, 6th Edition, p. 493 :-- 'It remains to remark that the plaintiff, bringing an action for the specific performance of a contract, may claim in the alternative that, if the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. The other option open to the other party, namely, the aggrieved party, is that he may choose to keep the contract alive till the time for performance and claim specific performance, but, in that event, he cannot claim specific performance of the contract unless he shows his readiness and willingness to perform the contract. Keeping in view the two decisions of the Supreme Court, we are of the opinion that the only conclusion is that once a suit for return of the earnest money/advance or grant of damages is filed, such a plaintiff disentitles himself to the alternative relief of specific performance even if claimed in the suit. If that is so, he cannot be allowed to amend his plaint later on to claim specific performance of the contract as the first relief and return of earnest money/advance and/or damages as an alternative relief. This is primarily on the rule that a claim for return of earnest money/advance and/or damages can be based on repudiation of the contract for one reason or the other and once the contract is repudiated, the relief of specific performance would not be available either as an alternative relief as was held in Prem Raj's case (supra) by the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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