TaxTMI 
TaxTMI 
TaxTMI 
2004 (8) TMI 694
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....ng 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. 2. The plaintiff shall deposit the balance sale consideration with the court within three months from the date of this decree. The balance sale consideration shall be paid for the entire area shown in the plaint and if in any case it is found by measuring the property that the actual extent is short of the area shown in the plaint the plaintiff shall get back the amou....
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....arded in the suit, excess amount deposited and interest by way of compensation on the sale consideration. Respondents were permitted to recover the amount of Rs. 12,77,780 from the amount lying deposited in the Bank. The break up of the sum of Rs. 12,77,780 under various heads for payment to the respondents was worked out as under : 1. Costs decreed to the plaintiffs : Rs. 3,09,093.00 2. Survey Expenses: Rs. 2,650.00 3. Excess amount deposited by The plaintiff Rs. 16,065.00 4. Interest on excess amount of Rs. 16,065 from 23.10.1997 To 17.8.1999 at 15% : Rs. 4,371.00 5. Interest on Rs. 44,50,320 from 23.10.97 date of deposit till 1.8.1999 at 12% towards compensation : Rs. 9,45,691.00 Rs. 12,77,870.00 Appellant being aggrieved with the order passed by the Trial Court preferred CRP No. 2267 of 1999 in the High Court. The learned Single Judge before whom revision petition came up for hearing agreed with the contention raised by the appellant that Section 28 of the Act invoked by the respondents would not be applicable to the facts of the case as Section 28 applies to cases where rescission of the contract takes place with regard to contr....
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....ation 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 specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly. (3) If, in any such suit, the Court, decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly. (4) In determining the amount of any compensation awarded under the section, the Court shall....
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....d. 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 section 21 seem to resolve certain divergence of opinion in the High Courts on some aspects of jurisdiction to the award of compensation. The Law Commission in its 9th Law Commission Report dated 19th July, 1958 (pages 18 and 19) observed that there has been a difference of judicial opinion as to whether the Court has the power to award compensation in a suit for Specific Performance, where the plaintif has not specifically prayed for it in the plaint. The Lahore High Court has taken the view in A.P. Pratinidhi Sabha v. Lahori, (1924) 5 Lah. 509, that the Court has the power to award damages whether in substitution for or in addition to specific performance eve....
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....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 of income on the sale amount of Rs. 45,66,385 from 23.10.1997, i.e., the date of deposit till delivery of the possession of the property. Permission seeking to amend the plaint to include the relief of compensation for breach of the contract in addition to the specific performance has not been made. The relief was claimed under Section 28 and not under Section 21 of the Act. The High Court came to the conclusion that Section 28 would not be applicable to the facts of the case but granted the relief under section 21 of the Act. In our view, the High Court has clearly erred in granting the compensation under Section 21 in addition to the relief of specific p....