TMI Blog1990 (4) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... y of ₹ 5,000; that the property was jointly owned by the defendant with her step motherin-law Smt. Lajwanti who would also join the execution of the sale deed; that if Smt. Lajwanti failed to do so the respondent (defendant) would sell her half share of the property for half of the sale price; that the defendant-respondent pursuant to the agreement delivered possession of her share of the property to the plaintiffappellant, whereafter the plaintiff repaired the property spending ₹ 4,200; that thereafter the partition was also effected between the defendant-respondent and Smt. Lajwanti; that the defendant thereafter illegally took possession of the property from the plaintiff-appellant and refused to execute the sale deed in terms of the agreement dated 16.9.1971 on or before September 26, 1971 as stipulated; that as arbitration proceedings between defendant and her co-sharer Smt. Lajwanti was going on the defendant took back the said agreement (styled as receipt) and thereafter refused to execute the stipulated sale deed and in response to the plaintiff's lawyer's notice dated 23.7.1971 the defendant took the false plea that the agreement did not pertain to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was allowed by the High Court by the impugned judgment and order to the extent already indicated. Before the High Court the defendant-respondent contended that if the entry PW-11/A was to be treated as original document or its counterpart the same did not bear the signatures of one of the parties, that is, the respondent. The signatures of the husband of the respondent would be of no avail as there was no evidence on record to show that he had the authority to execute a document on her behalf and the document signed unilaterally by one party could not be treated as an agreement between two persons. Secondly as was admitted by the witness, the entry was more or less an extract of the original document and such an extract drawn and maintained by a deed writer according to his own light could not form basis of an agreement between the parties which could be given effect to by way of specific performance. Both the contentions were sustained by the High Court holding that no contract could be inferred from the document PW-1 I/A. Accordingly the High Court set aside the decree for specific performance, allowed the appeal and passed a decree to the extent of ₹ 5,000 being the earnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation. Mr. Subramaniam argues that there was an oral agreement. The issue No. 1 was whether there was a valid agreement of sale dated 16.9.1971 between the parties, if so what were its terms . Issue No. 14 was whether there was an agreement of sale on 12.9.1971 between the parties, if so what were its terms ? The trial court adjudicated issue No. 1 in favour of the plaintiff. Before the First Appellate Court it was contended by the defendant that the alleged agreement to sell dated 16.9.1971 was not admissible in evidence for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 26.9.1971.; and that his client was ready and willing to perform her part of the contract. KaushalVa Devi was therefore called upon to execute and register the sale deed in favour of Mayawanti to the extent of one half each of the karkhana as his client had always been and still was ready and willing to perform her part of the contract. The defendant replied to the said letter through her Advocate Hat Kishan Lal Soni by letter dated December 29, 1971 stating that Mayawanti agreed to buy a factory consisting of a flour mill, two kohlus, a 20 H.P. electric connection installed in property Unit No. B-VII-7 (old), B-VIII-9 (new) and she called upon the plaintiff to arrange to pay the sum of ₹ 50,000 and get the sale transaction registered within 10 days failing which the sender should be at liberty to sell it to any other party at the risk of the plaintiff for compensation by way of damages suffered from the resale. It is to be noted that there is no mention of any building in this letter. In their letter dated 4.1.1972 from Mr. Soni to Mr. Singhal, Advocate for the plaintiff, it was stated that the agreement was to transfer two kohlus and 20 H.P. electric connection installed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offeree to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer. The rule is that the acceptance must be absolute, and must correspond with the terms of the offer. If the two minds were not ad idem in respect of the property to be sold, there cannot be said to have been a contract for specific performance. If the parties themselves were not ad idem as to the subject matter of the contract the court cannot order specific performance. If the plaintiff understood the terms to have included the building but the defendant understood it to have excluded the building and the so called memorandum Ext. PW-11/A did not mention the building, there is no contract before the court for specific performance. While Mr. Subramaniam would argue that the land was also included, Mr. Nariman rightly points out that land was nowhere mentioned in PW-11/A. It is true that Issue Nos. 2 and 3 were whether the defendant delivered possession of the property to the plaintiff pursuant to the agreement and whether the possession was illegally taken by the defendant, and the Trial Court found no ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Gupta, petition writer, Ludhiana dated 21.11.1971. Under the column particulars of writing and address for the witnesses, it contains the following: Smt. Mayawanti W/o Master Kasturi Lal, Ludhiana owns and has a factory, flour mill, Two 'kohlus' for expelling oil. I and Smt. Lajwanti widow of Baru Ram, Ludhiana have an electric motor of 20 H.P. connection in working condition at Gokal Road. To the East Amar Singh, to the West Mansa Ram, Ramji Das, to the north there is a road, to the South there is a Gali. All these are settled to be sold for ₹ 50,000 and ₹ 5,000 is taken as advance. The balance will be taken at the time of registration. The registration will be done at the expense of the buyer. It will be in the name of the buyer or in any other name he indicates by 26.9. 1971. If any other person has a right or encumbrance on it, the advance and compensation will be paid back. If Lajwanti does not sign these sale deeds, then I will execute the sale deed of my one of the two shares, otherwise pay pack the advance and compensation in the same amount. The buyer may take the advance. WITNESSES: Dharam Dev, husband of one who gives the receipt, R/o Ludhiana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ways but one obligation to be performed in one way unless the promisor choose to substitute another way? In other words, the primary obligation being impossible was the promisor bound to exercise the option for the benefit of the other party? It would be reasonable to construe that if Lajwanti failed to sign the sale deed then the promisor would either execute the sale deed in respect of her share, or in the alternative, pay back the advance and compensation in the same amount, and the buyer would have to take the advance. Lajwanti having refused to sell her share, the first alternative became impossible. The question then was whether the second alternative would automatically follow or option was reserved by the vendor either to sell her own share or to pay back the advance and the compensation in the same amount. The first alternative failing, if the promisor decided in favour of the other alternative, it could not be said that there was any breach of any obligation under the agreement, and if that was so, there could arise no question of specific performance of the contract. Looking at PW-1 i/A from another angle the payment was an alternative to performance. In paragraph 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Where there are negotiations, the court has to determine at what point, if at all, the parties have reached agreement. Negotiations thereafter would also be material if the agreement is rescinded. The jurisdiction of the court in specific performance is discretionary. Fry in his Specific Performance, 6th Edn. P. 19, said: There is an observation often made with regard to the jurisdiction in specific performance which remains to be noticed. It is said to be in the discretion of the Court. The meaning of this proposition is not that the Court may arbitrarily or capriciously perform one contract and refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 9 of the Specific Relief Act says that except as otherwise provided in that Act where any relief is claimed under Chapter I1 of the Act in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts. In the instant case the defence of there having not been a contract for lack of consensus ad idem was available to the defendant. In view of the above conclusion, the appeal has to be dismissed. We should, however, like before concluding, to refer to certain other aspects debated before us: (1) At a late stage of the arguments, it was contended on behalf of the appellant that the translation of Ext. PW1 1/A acted upon by the High Court, is not accurate and that it does not refer to Mayawanti as the owner of the Kohlus etc. We directed the original records to be called for and also gave leave to the appellant to file a translation. This has been done but the respondent does not accept this. It was also mentioned on behalf of the appellant that the translator in the Supreme Court had found the original too illegible to be translated and it was requested that a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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