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Ardeshir Mama Vs Flora Sassoon: Any Person Suing For Specific Performance Of A Contract May Also Ask For Compensation For Its Breach, Either In Addition To Or In Substitution For Such Performance

Ananya Gosain ,
  08 October 2021       Share Bookmark

Court :
High Court of Bombay
Brief :

Citation :
(1928) 55 MLJ 523

Crux:
Any person suing for specific performance of a contract may also ask for compensation for its breach, either in addition to or in substitution for such performance.

Date of Judgement:
21/05/1928

Coram:

  • Lord Phillimore
  • LordBlanesburgh
  • Mr. Ameer Ali

Parties:

  • Appellant: Ardeshir Mama
  • Respondent: Flora Sassoon

Subject

This judgment discusses in great detail Section 29 of the Specific Relief Act, 1877 that entails bar of suit for breach of dismissal and also cases in which specific performance enforceable.

Overview

  • This case is a simple action brought by a purchaser, in 1920, for the specific performance of a contract for the sale of certain valuable here ditaments on Malabar Hill in Bombay, along with a claim for damages under Section 19 of the Specific Relief Act.
  • The Plaintiff proved that he had evidence of the facts alleged by him and thus was entitled to the relief he sought under Section 12 of the Act.
  • The Court observed that this right would be dependent on having the plaintiff willing to perform the contract on his part, up to the date of decree.
  • On March 19, 1924, the plaintiff's side notified that the plaintiff had decided to drop his claim for specific performance. Instead, he would now proceed with the claim for damages under his contract which were assessed to be 7 Lakhs.
  • The plaintiff stated that he had found it inconvenient to retain in order to complete the purchase under the contract. At the trial, the plaintiffs' counsel, though severely opposed, sought to convert the suit into an award for damages for breach of contract only.
  • The court held that though it does not doubt that the statement is not correct, they are not convinced as to the fact that it was not influenced by the prospect of such heavy damages. It was opined that the contract for sale does exist and ordered the defendant to return the deposit and further awarded the sum of 7 lakhs as damages for breach of contract. An appeal was made to High Court, wherein it was held that defendant's agent had no authority and discharged the order of the trial court. From this decree, the plaintiff appealed further.

Relevant Provisions

  • Section 29, Specific Relief Act 1877: The dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiff’s right to sue for compensation for the breach of such contract or part, as the case may be.
  • Section 12, Specific Relief Act, 1877: It specifies cases in which specific performance enforceable.
  • When the act agreed to be done is in the performance, wholly or partly, of a trust;
  • When there exists no standard for ascertaining the actual damage caused by nonperformance of the act agreed to be done;
  • When the act agreed to be done is such that pecuniary compensation for its nonperformance would not afford adequate relief; or
  • When it is probable that pecuniary compensation cannot be given for the non ­performance of the act agreed to be done.

Issues

  • Whether there was a concluded agreement as alleged?
  • Whether the appellant was entitled to any, and if so, what damages?

Analysis

  • The court looked into the matter in great detail. It was observed that respondent owned a property situated on Malabar Hill in Bombay. It had two residential units, known as the II Palazzo and the Nepean House. There was also a vacant large area of land to the west, which is very conducive to amenity as it is very highly prized.
  • The Respondent on sale of II Palazzo was determined that while the vacant land to the west directly in front of "II Palazzo " might be sold with that house, the vacant land also to the west directly in front of the Nepean House must be retained for enjoyment therewith.
  • The court observed that the burden of proving that the contract sued on is binding upon the respondent rests with the appellant. The court noted that the terms of the contract are not proved by appellant as far as parcels are concerned.
  • The appellant does not controvert the letter of March 17, 1920, to the effect that the record regarding the payment of the price and completion was inserted without authority. The receipt was nothing more than a counter offer by the appellant and the negotiation process remains incomplete.
  • If a party to a contract refuses to perform its part of the bargain, the other party has two remedies. He can either institute a suit in equity or he can bring an action in law for breach. But what is to be remembered is the attitude of the party towards the contract and towards the defendant must not differ fundamentally as per his choice.Any person suing for specific performance of a contract may also ask for compensation for its breach, either in addition to or in substitution for such performance.
  • Section 29 of the Specific Relief Act clearly indicates that the plaintiff once satisfied with the remedy regarding the alleged breach of the contract cannot seek specific performance.

Conclusion

The court dismissed the appeal stating the dismissal of a suit for failure to perform under contract bars the right to sue for compensation if the breach occurred. This means that prior to the dismissal;the Judge had the power to allow the amendment.

For four years, the plaintiff had been delaying specific performance which made it impossible for the defendants to deal with property in suit without obtaining prior approval from the Court. The amendment deprived the power of court to compel him to accept the decree.

Click here to download the original copy of the judgement

 
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