TMI Blog1948 (11) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... s sale and entered into the contract dated, 21st March 1943, with the plaintiff. The fact that there was such a contract is not denied. 2. Soon after the contract there were differences between the parties about certain minor Terms, specially about the payment of brokerage. Ultimately, on 29th April 1913, all the terms were settled. A draft of the sale-deed had already been sent by the defendant to the plaintiff for approval on the 26th and this draft was approved by the plaintiff on the 29th. One thing, however, still remained to be done and it was the obtaining of the permission of the Collector for the sale. The house was built on leasehold land and under the lease the lessee could transfer the premises only with the permission of the Collector and to a party approved by him. Between 29th April and 3rd May the defendant got money from a relation of his which was sufficient to clear off his liabilities and therefore the necessity for the sale no longer existed. He, therefore, wrote a letter dated 3rd May 1943, to the plaintiff at Bombay in which he explained the circumstances that had compelled him to agree to sell the house, the value that he and his wife attached to the hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s than ₹ 4,000 and as the sum of ₹ 4,000 had not been paid he was returning the cheque for ₹ 1.000 which had been sent to his father and that he had placed the papers in the hands of his lawyer to file a suit for specific performance. Thereupon the suit was filed on 31st May 1943. 4. In defence the defendant took several pleas. It is not necessary to deal with them in detail and we shall only mention such of the pleas as have been urged before us. The learned Civil Judge framed three issues which were as follows: 1. Did the plaintiff agree to accept damages in lieu of specific performance of the contract in suit; if so, how does the fact affect the case? 2. Is the plaintiff not entitled as of right to claim specific performance of the contract in suit in view of the circumstances set up in Paras. 17 and 18 of the written statement? 3. Is the plaintiff entitled to recover damages claimed; if so, how much? The learned Civil Judge decided on issues 1 and 2 that the plaintiff had written to his son, Shri Krishna Agarwal, to settle the amount of damages and that the covering letter of the plaintiff, sent along with the defendant's letter dated 3rd Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h this point their Lordships of the Judicial Committee observed: The appellants contended that Section 63 applied only where there was an agreement to dispense or a contract, supported by consideration, to do so, and that in any case it could only operate, when the party dispensing had performed his part of the contract and only something remained to be performed on the other side unless dispensed with.... They further said that, if they had been wrong in refusing in advance to accept bales, this repudiation has not been accepted by the respondents, and therefore the contract remained alive and ought to have been performed. It is evident that the alleged dispensation under Section 63 is by itself a complete answer, unless the absence of contract or consideration is fatal, for the appellants again and again dispensed with the performance by the respondents of their promise to deliver the goods contracted for, and they cannot recover damages for the breach of a promise touching the ,performance of a thing they wholly dispense with. Their Lordships, after holding that they did not agree with the decision of a Bench of the Bombay High Court in Abaji Sitaram Modah v. Trim-bah Muni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring letter as he did not consider it to be of any importance. In view of the fact that the entire correspondence has been preserved, the lower Court was of the opinion that the covering letter had not been destroyed but was being suppressed and we have no reason to differ from the finding recorded by the lower Court. The question arises what inference should be drawn under Section 114, illust. (g), Evidence Act, from the suppression of this letter. The learned Counsel for the plain-tiff-appellant has urged that the letter was never summoned from the plaintiff and that may have been a good answer but unfortunately for the plaintiff the plaintiff's case is that the letter was destroyed soon after its receipt and therefore there was no point in the defendant summoning it from the plaintiff. We are inclined to accept the view of the lower Court that the letter was deliberately suppressed and if the letter was deliberately suppressed, the only reason for the suppression would be that, if produced, it would not support the plaintiff's case. We think it is very likely that the plaintiff, who is an elderly man holding a responsible Government post, was willing, on receipt of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that the situation has changed and land was offered, bought and held simply as merchandise for mere purposes of pecuniary profit, possessing no interest in the eyes of the purchaser and owner other than its market value, but the rule having once been established has now become universal and the actual motives and design of the purchaser are never inquired into, for it is assumed in every instance that damages are an inadequate relief for the breach of a land contract. 9. So far as we are concerned, the law is laid down in the Specific Relief Act. Section 12 of the Act sets out the cases in which specific performance is enforceable. Clause (c) provides that the specific performance may be granted when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief and the explanation to the section provides that unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer Immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer moveable property can be thus relieved. It has, therefore, made it a question of bur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 23, Evidence Act, the letter may not be taken into account. But, in his examination-in- chief, Shri Krishna stated that after the breach of the contract on the part of the defendant, his son came to me and pleaded mercy. I took pity, but I did not abandon the idea of going in for the house, as I needed the house badly. I told him that he shall have to give up the house failing which suit for specific performance shall be filed. I only said that I would be prepared to recommend to my father for a favourable consideration in case defendant was to pay the proposed amount immediately. That was not accepted. My father had valuable shares which he sold just to keep ready cash. He lost over ₹ 4,000, but in order to end all dispute, I suggested ₹ 4,000. The defendant, when he came into the witness box, stated that he had sent his son to discuss the question of compensation with the plaintiff's eon and his son came back and informed him that the plaintiff was not willing to accept less than ₹ 4,000 to relieve him of his liability under the contract. It would thus appear that at one stage the plaintiff considered that he could be sufficiently compensated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e compensation, the principle of the decision in Ramji Patel's case A.I.R. 1929 P.C. 190 is clearly applicable. 13. The third point urged by learned Counsel is that the Court cannot grant specific performance of the contract inasmuch as the property was such that it could only be sold under the Collector's sanction and to a person approved by the Collector, the house being on Nazul land, it was held by the plaintiff as a lessee from the Government. The plea was not taken in the lower Court and we cannot, therefore, go into this matter any further and allow this point to be raised before us. 14. The last argument advanced by learned Counsel for the respondent is that there would be special hardship caused to his client, if the contract is specifically enforced, as he too has retired, or is retiring, from Government service and wants to settle in Allahabad and that he has a sentimental attachment to the house and had spent a large sum of money in building the house and in paying off interest on the sum borrowed for the purpose and that it was only because of the fact that he was in financial difficulties that he had been forced to agree to the sale of the house. We are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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