Judgement

Appeal (No. 156 of 1923) from a decree of the High Court (March 26, 1923) reversing a decree of a Subordinate Judge at Alipur.

By a contract in writing dated September 15, 1919, the appellant agreed to sell and the respondent agreed to purchase the land described in the schedule thereto at the price of Rs.1,53,000 to be paid as to Rs.501 as deposit, and by way of earnest, and the residue upon completion. The schedules to the contract contained a description of two parcels of land in the suburbs of Calcutta, one (referred to as plot A) by estimation 11 bighas, 13 cottahs with tanks, and the other (plot B) 11 bighas, 4 cottahs and 2 chitrachs with tanks. The schedule stated the boundaries of each plot.

The terms of the contract as to requisitions and objections and other matters, drew no distinction between the two plots; and it was agreed that time should be of the essence of the contract and that completion should take place within fourteen days.

The appellant having failed to make a good title to plot B, the respondent brought the present suit claiming specific performance of the contract, or alternatively a refund of the deposit with interest, and damages for breach of the contract.

The Subordinate Judge held that, having regard to the provisions of the Specific Relief Act, 1877, the appellant was not entitled to a decree for specific performance of so much of the contract as related to plot A, but he directed a return of the cheque for the deposit which had not been cashed.

Upon appeal to the High Court the decree was set aside. The learned judges (Ghose and Panton JJ.) were of opinion that the case came within s. 16 of the Specific Relief Act, 1877, since, in their view, the contract, although nominally one, was really divisible ; they were also of opinion that on general principles of equity the appellant should be held liable. On the latter point they referred to Mortlock v. Bullet ((1804) 10 Ves. 315.) and other decisions of the English Courts. They accordingly decided that the plaintiff was entitled to specific performance as to plot A, with an abatement of the purchase money in respect of the failure to make a title as to plot B, and remitted the case to the lower Court for the assessment of the abatement to be allowed.

1924. Oct. 28. Dunne K.C. and Bryan Farrer for the appellant. The case is governed entirely by the provisions of the Specific Relief Act, 1877, which replaces for India the decisions of the Courts in England. The contract as to the two plots being an indivisible contract, there was no power under s. 16 to order specific performance.

The respondent did not appear.

Nov. 21 The judgment of their Lordships was delivered by

LORD SUMNER. This was a purchasers suit to enforce under the Specific Relief Act, 1877, a contract for the sale of two plots of land for one sum of Rs. 1,53,000 in the Tollygunj District of Calcutta. The contract required the vendor to make out a marketable title and, in case of failure to do so, bound him to refund the deposit on demand. It also stipu lated that, in case of any deficiency in the area or quantity of land, no compensation should be payable by the vendor on actual measurement. There was no general condition either providing for compensation or excluding it. The vendor proved to be unable to make a title to the second plot and the trial judge, having offered the plaintiff a decree for the conveyance of the other plot on the terms of s. 15, which offer was refused, dismissed the suit without costs. On the issue of damages for breach of the contract no evidence of material damage was given.

On appeal the High Court, considering that the case fell within the terms of s. 16, allowed the appeal but, having before them no evidence of the value or character of the plots beyond the particulars given in the contract, remitted the case to the trial judge, in order that he might take evidence and assess the abatement of price to be allowed in respect of the failure to make title to one of the plots.

Sects.14 to 17 inclusive of the Specific Relief Act, 1877, are both positive and negative in their form. Taken together they constitute a complete code, within the terms of which relief of the character in question must be brought, if it is to be granted at all. Although assistance may be derived from a consideration of cases upon this branch of English jurisprudence, the language of the sections must ultimately prevail.

Sect. 17 prescribes that there shall be no grant of specific performance except in cases coming within one or other of the three previous sections. It was not proved that the part of the contract which was left unperformed bore only a small proportion in value to the whole within s. 14, and the purchaser had declined to accept relief on the terms of s. 15. Accordingly, s. 16 (which appears to be novel in the width of the power which it confers) afforded the only ground on which the Court could help him. To make this section applicable it had to be shown that there was a part of the contract, to wit, that relating to plot A, which (a) " taken by itself could and ought to be specifically performed," and (b) " stood on a separate and independent footing " from the other part of the contract, which admittedly could not be performed.

Their Lordships think (1.) that before a Court can exercise the power given by s. 16 it must have before it some material tending to establish these propositions, and cannot apply the section on a mere surmise that, if opportunity were given for further inquiry, such material might be forthcoming and possibly might be found to be sufficient; and (2.) that the words of the section, wide as they are, do not authorize the Court to take action otherwise than judicially, and in particular do not permit it to make for the parties or to enforce upon them a contract, which in substance they have not already made for themselves.

When the whole contract is enforced in one way or another, as to the greater part by the remedy of specific performance and as to a small residue by compensation, it is not necessarily making a new contract to select from among the remedies, which the Court can grant, one for the major and another for the minor part of the contract. For this jurisdiction s. 14 specifically provides and s. 17 forbids any extension beyond it. Hence s. 16, both because it must be something not covered by s. 14 and because no Court can act unjudicially without either statutory warrant or consensual authority, must be limited, and the expression " stands on a separate and independent footing " points to a limitation, which would exclude any new bargain, that cannot be said to be contained in the old one.

In the present case the contract states that the plots are in the same district, are of about the same area, are both equipped with tanks but otherwise are without specific description, and are both so delimited that they can be said to be bounded by such and such roads or properties on the north, south, east and west. The price, however, is a price for both together and, in describing the steps to be taken as to making title, granting an assurance, and receiving rents and profits, both plots are dealt with together as a whole, and there is nothing by which to separate them or to place one on a footing independent of the other. In fact, if it were not for the statement of their areas, which are cautiously stated not to be guaranteed, and of their boundaries and locality, no separate and independent footing could be suggested or alleged to distinguish either from the other. It may be that in the estimation of the parties at the time of the agreement one was more valuable than the other, bigha for bigha, or one was made more valuable than it would otherwise have been by the simultaneous acquisition of the other, apart from their respective areas. Nothing is stated about the quality or amenities of the land. It may be that, because both were sold together, the total price was less than the aggregate prices would have been, if both had been sold apart. To call the parties to give further evidence now is to try to make them agree on a new price, subject to settlement by the trial judge, if they differ; it is, in fact, to impose on them an arbitration, to which they have not submitted. To resort to expert evidence is to inquire what they ought to have agreed upon, though the fact is that, left to themselves, they did not choose to do so. To remand the case to the trial judge is to delegate to him a discretionary decision, which rested with the High Court itself in the view which it took of the appeal. Their Lordships are, therefore, of opinion that the judgment of the High Court cannot stand and that the judgment dismissing the suit should be restored.

The trial judge gave the successful defendant no costs. The defence was singularly devoid of merit. The vendor, a barrister-at-law, owned only one of the two plots, which he agreed to sell, the other, as he must have known, belonging to his wife, and the assurance, which he subsequently gave upon a requisition on title, that his wife would concur, was somehow falsified. He then set up an affirmative defence, that time was of the essence of the contract, which failed at the trial, and has since been abandoned. Their Lordships accordingly think that there ought to be no costs now on either side, either of the appeal or of the proceedings in the Courts below, and they will humbly advise His Majesty to the above effect.