{"id":196177,"date":"1998-05-15T00:00:00","date_gmt":"1998-05-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ganesh-shet-vs-dr-c-s-g-k-setty-ors-on-15-may-1998"},"modified":"2017-10-09T05:05:03","modified_gmt":"2017-10-08T23:35:03","slug":"ganesh-shet-vs-dr-c-s-g-k-setty-ors-on-15-may-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ganesh-shet-vs-dr-c-s-g-k-setty-ors-on-15-may-1998","title":{"rendered":"Ganesh Shet vs Dr. C.S.G.K. Setty & Ors on 15 May, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ganesh Shet vs Dr. C.S.G.K. Setty & Ors on 15 May, 1998<\/div>\n
Author: M J Rao.<\/div>\n
Bench: S.B. Majmudar, M. Jagannadha Rao<\/div>\n
           PETITIONER:\nGANESH SHET\n\n\tVs.\n\nRESPONDENT:\nDR. C.S.G.K. SETTY & ORS.\n\nDATE OF JUDGMENT:\t15\/05\/1998\n\nBENCH:\nS.B. MAJMUDAR, M. JAGANNADHA RAO\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t THE 15TH DAY OF MAY, 1998
\nPresent:\n<\/p>\n
\t      Hon’ble Mr. Justice S.B. Majmudar
\n\t      Hon’ble Mr. Justice M. Jagannadha Rao
\nR.F.   Nariman,\t   Sr.Adv.,   Girish   Ananthamurthy,\tG.V.
\nChandrasekhar,\tB.Y.   Kulkarni,  Advs.\t With  him  for\t the
\nappellant
\nM.Rama Jois,  Sr. Adv.,\t P. Mahale,  Adv. with\thim for\t the
\nRespondent in No.1
\nG.L. Sanghi,  Sr.Adv., T.V.  Ratnam., Adv.  with him for the
\nRespondent Nos. 2-3
\n\t\t      J U D G M E N T
\nThe following Judgment of the Court was delivered:
\nM. JAGANNADHA RAO. J.\n<\/p>\n
     The appellant  is the  plaintiff. He filed the suit O.S
\nNo. 50\tof 1985\t for specific performance of an agreement of
\nsales of  house property located at Shimoga, Karnataka State
\nexecuted in  his favour. He succeeded in the trial court but
\non appeal  by the  Vendors-defendants, the  Judgment of\t the
\ntrial court was set aside by the High Court and the suit was
\ndismissed. Against the said Judgment of the High Court, this
\nappeal was preferred.\n<\/p>\n
     The case of the appellant in the suit filed on the file
\nof the\tCivil Judge, Shimoga was as follows : The defendants
\n1 to  3 are three brothers and are joint owners of the house
\nat Shimoga.  The Ist  defendant\t who  was  a  Professor\t was
\nworking at  Delhi (  now retired);  the 2nd defendant was at
\nMadras\tand  the  third\t defendant  was\t at  Bangalore.\t The
\ndefendants 2  and  3  gave  powers-of-attorney\tto  the\t Ist
\ndefendant. There  were consultations  between plaintiff\t and
\nthe Ist\t defendant which  started in  1983 by  way telephone
\ncalls and  letters and\t‘after the  negotiations  reached  a
\nfinal stage’  the Ist defendant wanted the plaintiff to come
\nto Delhi  “for finalising” the proposals. The plaintiff took
\nalong with him, one Mr. R.K. Kalyankar (PW 2) to help him in
\nthe negotiations. They took two bank drafts for Rs. 50,000\/-
\nand Rs\t. 10,000\/- respectively and reached Delhi in January
\n1984. On 25.1.1984, at the residence of the Ist defendant, a
\ndraft agreement\t of sale was ‘approved’ by the Ist defendant
\nwith small  changes made  in his own handwriting and the Ist
\ndefendant told the plaintiff ‘that he was approved the draft
\nand “the  contract was\tconcluded”. (The  photocopy  of\t the
\nagreement was  filed and its original was marked as Ex. p3).
\nThe agreed  consideration was  Rs. 5 lakhs and the purchaser
\nagreed to  bear the  stamps and registration charges. It was
\nalso agreed  that the  sale deed  was to  be executed  on or
\nbefore 30.6.1984  or  within  a\t reasonable  time  and\tthat
\nthereafter the plaintiff would be put in possession. The Ist
\ndefendant did  not accept  the Bank drafts but said he would
\naccept the  entire consideration in one lump sum at the time
\nof registration.  The plaintiff\t returned to Shimoga and the
\nfurther correspondence\t‘only confirmed\t that the defendants
\nwould execute  the sale\t deed’.\t The  plaintiff\t received  a
\ntelegram (Ex.  p7 dated\t 4.4.84) addressed  to PW 2 that the
\nterms of  the agreement\t were acceptable.  Further, the\t 3rd
\ndefendant also\t“confirmed” the\t terms of  the agreement  by
\nletter\tdated  11.4.84\t(Ex  .P6).  The\t plaintiff  received
\nanother letter dated 18.4.1984 (Ex.P4) which stated that 1st
\ndefendant would\t be coming  over to  Bangalore on 28.4.1984.
\nThey met  at Bangalore\tand it was agreed that plaintiff was
\nto be  ready with the entire sale consideration by about 3rd
\nweek of\t June 1984. The plaintiff raised finances by selling
\nsome of\t his properties. The plaintiff was ready and willing
\nto perform  the contract.  The Ist defendant came to Shimoga
\non or  about 17.6.1984\tbut surprisingly he did not meet the
\nplaintiff.  On\tthe  other  hand  defendants  gave  a  paper
\nadvertisement on  26.6.84 for  sale of\tthe house. Plaintiff
\nthen got  a regd.  notice dated\t 2.7.84 (Ex.P12)  issued and
\ndefendants 2  and 3  give a  reply dated 31.7.84 (Ex . P16).
\nThe suit  was laid for specific performance of the agreement
\nof sale\t said to  be dated 25.1.84 entered into at Delhi and
\nfor posession  and also for permanent injunction restraining
\nalienation by defendants.\n<\/p>\n
     A written\tstatement was  filed by\t the  Ist  defendant
\ncontending mainly  that\t there\twas  correspondence  between
\nparties, the  negotiations did\tnot reach  any ‘final’ stage
\nand that  there was ‘no concluded contract’. There were only
\nproposals and  counter proposals. Sale consideration was not
\nRs .5  lakhs. The Ist defendant had an obligation to consult
\nhis brothers.  They were  not willing for a consideration of
\nRs.5 lakhs.  The Ist defendant did  not state, as contended,
\nin any\ttelegram dated\t4.4.84 nor any letter dated 11.4.84.
\nPW 2  sent another  draft agreement(Ex.\t D11) alongwith\t his
\nletter dated  29.31984 (Ex  .P8) and  the Ist defendant made
\ncorrections  therein,  especially  regarding  consideration,
\ncorrecting the\tfigure Rs  .5 lakhs as Rs.6.50 lakhs – apart
\nfrom other  corrections. The  Ist defendant  did not ask the
\nplaintiff to  be ready\tby June\t 1984  for  registration  as
\nalleged\t by  plaintiff.\t The  agreement\t produced  alongwith
\nplaint was  only a proposal. Plaintiff was, in the meantime,
\nnegotiating for another property at Davangere. Plaintiff was
\nnot ready  and willing.\t The plaintiff\tdid not\t product the
\nletter of PW 2 dated 11.4.84 addressed to Ist defendant. The
\nsuit was  liable to be dismissed. These were the allegations
\nin  the\t  said\twritten\t statement  of\tthe  1st  Defendant.
\nDefendants 2  and 3  adopted the  written statement  of\t Ist
\ndefendant.\n<\/p>\n
     The  trial\t  court\t after\t considering  the  oral\t and
\ndocumentary evidence  held on  issue 1,3 & 4 that a contract
\nwas concluded  at Delhi\t between Plaintiff and defendants on
\n25.1.1984 for Rs .5 lakhs as per Ex .P3 draft, that the said
\nagreement dated 25.1.84 was not materially altered later and
\nthe sale deed was agreed to be executed by 30.6.84. On issue
\n2,   it held  that plaintiff  was ready and willing and that
\nplaintiff  was\tentitled  to  specific\tperformance  of\t the
\nagreement  dated   25.1.1984  and  for\tpermanent  injuction
\nagainst defendants not to alienate the property to others.\n<\/p>\n
     The defendants  1 to  3 appealed to the High Court. The
\nHigh Court  reversed the  decree and  dismissed the suit. It
\nheld that  there was  no concluded  contract on 25.1.1984 at
\nDelhi and this was clear from the subsequent correspondence.
\nSo far\tas the\tsubsequent correspondence  was concerned, it
\nwas clear  from Ex.P5 dated 10.4.84 written by Ist defendant
\nthat the Ist defendant was ready to execute the agreement as
\nper the “talks” that took place at Delhi on 25.1.1984 and he
\nhad written to the plaintiff to go over to Delhi or he would
\ncome to\t Bangalore. He requested the plaintiff to inform him
\nabout the  plaintiff’s decision\t in regard  to\tthe  matter.
\nEx.P23 letter  addressed to  plaintiff also  said  the\tsame
\nthing. As  per Ex .P6 letter dated 11.4.84 of defendants the
\nball was  left in  the court  of the plaintiff ‘awaiting his
\nconfirmation’, but  the plaintiff did not send any reply. Ex
\n.P4 letter dated 18.4.84 of Ist defendant showed that he had
\nsent the  agreement  sent  by  the  Plaintiff  with  certain
\nalterations and that he would be reaching on 28th. But after
\nIst defendant  arrived at  Bangalore on\t 27.4.84 , plaintiff
\ndid not\t meet him.  It was  not possible to say that parties
\nhad agreed  for Rs.  5 lakhs at any stage. The draft sent to
\nthe ist\t defendant alongwith  Ex.P4 letter was of course, Ex
\nP3 as  contended by  plaintiff and  not the  other draft Ex.
\nD11, as\t contended by  the 1st\tdefendant. But\tit  was\t not
\npossible to  accept that plaintiff agreed to pay Rs.5 lakhs.
\nInasmuch as  the relief\t was for  specific performance of an
\nagreement of  sale dated 25.1.1984 and no such agreement was
\nproved, it must be held that plaintiff did not come to Court
\nwith clean  hands and  discretion could\t not be exercised in
\nhis favour.  It was  also stated that plaintiff, when he was
\nasked if  he wanted  to rely  on any agreement of April 1984
\nand if\the would  amend the  plaint, the plaintiff’s counsel
\nwas not\t willing to  amend the\tplaint. Hence  the suit\t was
\nliable to be dismissed. The appeal was allowed accordingly.\n<\/p>\n
     In this  appeal elaborate\targuments were\tadvanced  by
\nlearned senior\tcounsel Sri  R.F. Nariman for the plaintiff-
\nappellant, learned  senior counsel  by Sri Rama Jois for the
\nIst  defendant\tand  senior  counsel  Sri  G.L.\t Sanghi\t for
\ndefendants 2 and 3.\n<\/p>\n
     Four points arise for consideration :\n<\/p>\n
(1)  Whether there  was a  concluded  contract\tbetween\t the
\nparties on  25.1.1984 at  Delhi when plaintiff and PW 2 (Mr.
\nKalyankar) met the Ist defendant at his Delhi residence?
\n(2)  Having not agreed in the High Court to amend the plaint
\nand plead  that there  was a concluded contract at Bangalore
\non 28.4.84  and having thus refused to seek for a relief for
\nspecific performance of an agreement dated  28.4.84, whether
\nthe plaintiff  could contend  that there was an agreement of
\nsale dated 28.4.84 at Bangalore?\n<\/p>\n
(3)  What are  the legal  principles applicable to suits for
\nspecific performance under section 20 of the Specific Relief
\nAct, 1963  where there\tis variation  between pleadings\t and
\nevidence in  regard to\tthe  date  or  other  terms  of\t the
\ncontract? To  what extent  can relief  be  given  under\t the
\nheading ‘general  relief’ in  suits for specific performance
\nunder Order 7 Rule 7 CPC?\n<\/p>\n
(4)  Alternatively, whether, on the plaint as it stands, and
\nthe prayer  made  therein  without  seeking  amendment,\t the
\nplaintiff can  get a  decree for  specific performance of an
\nagreement dated\t 28.4.84 said  to  have\t been  concluded  at
\nBangalore?\n<\/p>\n
Point 1:\n<\/p>\n
     On this  point, as\t to whether  there  is\ta  concluded
\nagreement at  Delhi on 25.1.1984. there is abundant evidence
\nto say\tthat there  is no  such concluded agreement. This is
\nclear from  the\t suit-notice  Ex.P12  dated  2.7.84  wherein
\nplaintiff has  stated clearly  that at the Delhi meeting the
\nist defendant  said that  he  is  yet  to  consult  his\t two
\nbrothers. The  correspondance between  the parties  and\t PW2
\nsubsequent to  25.1.84 has  been read  to us  by the learned
\nsenior counsel\tfor the\t appellant-plaintiff and  on reading
\nthe same,  we are  clear that  the finding of the High Court
\nthat there  is no  concluded agreement on 25.1.1984 at Delhi
\nis unassailable\t and is\t absolutely correct.  The  tenor  of
\nseveral letters\t from PW2  to 1st  defendant after 25.1.1984
\nshows that  consideration for  sale  was  not  finalised  at
\nDelhi. Learned\tsenior\tcounsel\t for  the  appellant,  after
\nelaborate  submissions\t has  more  or\tless  accepted\tthis
\nposition and  has concentrated on the question which we have
\nset out\t under the  third and fourth points. Hence there can
\nbe no decree for specific performance of any agreement dated
\n25.1.84 as  none has  been concluded on that day. We hold on
\nPoint 1 accordingly.\n<\/p>\n
Point 2;\n<\/p>\n
     The learned senior counsel for the appellant has argued
\nbefore us  that plaintiff must be given relief in respect of
\nthe agreement which, according to him, has been concluded at
\nBangalore on  28.4.1984\t and  specific\tperformance  can  be
\ngranted in respect of such an agreement.\n<\/p>\n
     We have  already stated  that, in\tthe High Court, when
\nand opportunity\t for amendment\tof plaint  was given  by the
\nHigh Court  to the  plaintiff the  same was  spurned and not
\naccepted by the plaintiff’s counsel. That being the attitude
\nof the\tappellant in the High Court, we are of the view that
\nthe plaintiff  can not\tbe given  any  relief  for  specific
\nperformance of\tany such  agreement allegedly  concluded  at
\nBangalore on  28.4.1994. Point\t2 is  also held\t against the
\nappellant.\n<\/p>\n
Point 3 and 4:\n<\/p>\n
     These are\tthe points upon which the appellants counsel
\nmade elaborate\tsubmissions citing  several rulings  of this
\nCourt and  the High Courts under Order 6 and Order 7 CPC. It
\nhas been argued that, without amendment of plaint, plaintiff
\ncan ask\t the Court  to\tconstrue  the  pleadings  liberally.
\nInasmuch as both sides have adduced evidence on the question
\nwhether\t there\t has  been  an\tagreement  at  Bangalore  on
\n28.4.1984 or not, the plaintiff can still be given relief of
\nspecific performance  on the basis of the original plaint as
\nit stands, even assuming there is no specific reference to a
\ncontract being\tconcluded at  Bangalore on  28.4.84. Several
\nrulings have  been cited  before us  to the  effect that  if
\nparties have  led evidence  on a  point which  has not\tbeen
\npleaded, no prejudice will be caused if relief is granted on
\nthe basis  of what  emerges from  the evidence.\t We  do\t not
\npropose to  refer to  these rulings as the said propositions
\nare not in dispute.\n<\/p>\n
(A) Point 3:\n<\/p>\n
     (a) We  shall first refer to certain special principles
\nof law\tapplicable to  suits  for  specific  performance  in
\nregard to  the discretion  which is  to be  exercised  under
\nsection 20 of the Specific Relief Act, 1963, when there is a
\nconflict between  the pleading and the evidence.\n<\/p>\n
     Section 20\t of  the  Act  reads  as
\n     follows:<\/p>\n
     “S .20:  Discretion as to decreeing
\n     specific\t performance:(1)     The
\n     jurisdiction  to\tdecree\tspecific
\n     performance is  discretionary,  and
\n     the Court\tis not\tbound  to  grant
\n     such relief  merely because  it  is
\n     lawful to do so; but the discretion
\n     of the  court is  not arbitrary but
\n     sound  and\t reasonable,  guided  by
\n     judicial principles  and capable of
\n     correction by a court of appeal.\n<\/p>\n
     (2)——————————–
\n     (3)——————————–
\n     (4)——————————”\n<\/p>\n
It is  well settled  that the  circumstances referred  to in
\ndub-clauses (2)\t to (4)\t in regard to exercise of discretion
\nfor granting  a decree\tfor  specific  performance  are\t not
\nexhaustive.  The   relief  for\t specific   performance\t  is
\ndiscretionary and  is not  given merely\t because it is legal
\nbut it\tis  governed  by  sound\t judicial  principles.\t(See
\nMadamsetty Satyanarayana  vs. G.  Yellogi Rao  & Two  Others<\/a>
\n[1965 (2)  SCR 221] and Sardar Singh vs. Smt. Krishna Devi &
\nAnother<\/a> [1994 (4) SCC 18]).\n<\/p>\n
     It is  again well\tsettled that, in a suit for specific
\nperformance, the evidence and proof of the agreement must be
\nabsolutely clear and certain.\n<\/p>\n
     In Pomeroy\t on ‘Specific Performance of Contracts’ (3rd
\nEdn) (para 159) it is stated clearly, that a “greater amount
\nor degree  of certainly\t is required  in  the  terms  of  an
\nagreement, which  is to\t be specifically executed in equity,
\nthan is\t necessary in a contract which is to be the basis of
\nan action  at law  for damages.\t An action at law is founded
\nupon the  mere non-performance\tby the\tdefendant, and\tthis
\nnegative  conclusion   can  often   be\testablished  without
\ndetermining all\t the terms  of the agreement with exactness.
\nThe suit  in equity is wholly an affirmative proceeding. The
\nmere fact of non performance is not enough; its object is to
\nprocure a  performance by  the defendant, and this demands a
\nclear, definite, and precise understanding of all the terms;
\nthey must  be exactly  ascertained before  their performance
\ncan be\tenforced. This\tquality of  certainty  can  best  be
\nillustrated  by\t  examples   selected\tfrom   the   decided
\ncases……..”\n<\/p>\n
     The question is whether, when parties have led evidence
\nin regard  to a contract not pleaded in the evidence, relief
\ncan be\tgranted on the basis of the evidence and whether the
\nplaintiff can  be allowed  to give  a go-bye to the specific
\nplea in\t the plaint.  Is there\tany difference between suits
\nfor specific performance and other suits?\n<\/p>\n
     It appears\t to us that while normally it is permissible
\nto grant  relief on  the basis\tof  what  emerges  from\t the
\nevidence –  even  if  not  pleaded,  provided  there  is  no
\nprejudice to  the opposite  party, such\t a principle  is not
\napplied in suits relating to specific performance. In Gonesh
\nRam vs.\t Ganpat Rai  [AIR 1924\tCal 461],  the Calcutta High
\nCourt has  considered the same question. There the agreement
\npleaded was  not proved\t but plaintiff\twanted to  prove  an
\nantecedent agreement  based on\tcorrespondence. It  was held
\nthat the  plaintiff, in\t a suit\t for  specific\tperformance,
\ncould not  be permitted\t to abandon the case made out in the
\nplaint\tand  to\t invite\t the  Court  to\t examine  whether  a
\ncompleted agreement  may or  may not  be spelt\tout  of\t the
\nantecedent correspondence.  In that  connection Sir  Asutosh
\nMookerjee observed:\n<\/p>\n
     “The Court\t would not  in a case of
\n     this   description\t   permit    the
\n     plaintiffs to  depart from the case
\n     made in  the plaint  as  the  Court
\n     discourages, as  a\t rule,\tvariance
\n     between  pleading\tand  proof.  The
\n     test to be applied in such cases is
\n     whether  if   the\t variance   were
\n     permitted\t in    favour\tof   the
\n     plaintiffs,  defendants   would  be
\n     taken by surprise and be prejudiced
\n     thereby   ………This   rule   is
\n     applied with  special strictness in
\n     cases of  specific\t performance  of
\n     contracts.\t   In\t  Hawkins    vs.
\n     Maltby(1868)  3   Ch.A.  188,   one
\n     contract was  alleged  and\t another
\n     was proved,  with the  result  that
\n     the bill  was dismissed.  No  doubt
\n     where   there    has   been    part
\n     performance, the Court may struggle
\n     with     apparently     conflicting
\n     evidence rather  than  dismiss  the
\n     suit. This appears to have been the
\n     view adopted  by Lord  Cottenham in
\n     Mundy vs.\tJolliffe 5  Myl 8  C167:
\n     (1939) 9  LJ ch.  95. In  the  case
\n     before us\tthere is  no question of
\n     part performance”.<\/p><\/blockquote>\n
     A.N. Ray  (as he  then was)  in  Md.  Ziaul  Haque\t vs.
\nCalcutta Vyapar\t Pratisthan ([AIR  1966 Cal 605] referred to
\nthe  special   rule  applicable\t  to  suits   for   specific
\nperformance and also relied upon Hawkins vs. Maltby [1867] 3
\nCh.A.188. The learned judge observed;\n<\/p>\n
     “In Nil  Kanta’s case 19 C.W.N. 933
\n     = AIR  1916 Cal  774, it  was  said
\n     that when\ta  plaintiff  alleged  a
\n     contract\tof   which   he\t  sought
\n     specific performance  and failed to
\n     establish in  the court  would  not
\n     make   a\t decree\t  for\tspecific
\n     performance  of  a\t different  four
\n     specific performance of a different
\n     contract. Reliance\t was  placed  on
\n     Hawkins  vs.   Maltby  reported  in
\n     [1867] 3 Ch.A. 188.\n<\/p><\/blockquote>\n
     …….Emphasis was  rightly placed
\n     on the  aspect of\tthe  plaintiff’s
\n     case  pleaded  that  there\t was  an
\n     agreement in  the month  of  August
\n     and that  the plaintiff  failed  to
\n     prove that\t case and  the plaintiff
\n     having  completely\t abandoned  that
\n     case of  agreement in  the month of
\n     August, any  attempt on  behalf  of
\n     the plaintiff  to make  recourse to
\n     May agreement  would be  to have  a
\n     decree for\t specific performance of
\n     an\t agreement  which  was\tnot  the
\n     agreement of  the parties according
\n     to the plaintiff”.\n<\/p><\/blockquote>\n
The above special principles applicable to cases of specific
\nperformance can\t be also  gathered from standard works under
\nthe England  Law, where\t the above  English cases  and other
\ncases have been cited.\n<\/p>\n
     Halsbury’s\t Law  of  England  (Vol\t 44,  4th  Edn.1984)
\n(Specific Performance,\tpara 443)  (f  .n.1)  states,  after
\nreferring to  Pillage vs.  Armitage [(1805) 12 Ves 78], that
\nthe plaintiff  having failed  to prove an agreement which he
\nhad set\t up, was refused specific performance of a different
\nagreement admitted  by the  defendant cf  . Legal vs. Miller
\n[(1750) 2 Ves. Sen. 299].\n<\/p>\n
     Fry on  ‘Specific Performance’  (6th Ed)  (PP. 298-302)
\ndeals with  the exact  point in issue before us. The another
\nrefers to  four types  of cases:  (1)  Where  the  defendant
\nadmits the  contract alleged; (2) Where the defendant denies
\nthe contract  as alleged and the plaintiff supports his case
\nby one\twitness only;  (3) Where  the defendant\t denies\t the
\ncontract as  alleged and the evidence proves a contract, but
\ndifferent from\tthat alleged by the plaintiff; and (4) where
\nthe defendant  denies the  contract as\talleged\t and  admits
\nanother contract.\n<\/p>\n
     On\t the   assumption  that\t  plaintiff  has  proved  an
\nagreement at  Bangalore on  28.4.84 (which question we shall
\ndeal with  under Point\t4), it\tis obvious  that we are here
\nconcerned with\tcategory, Fry  says (p.\t 299) (paras  634 to\n<\/p>\n
638) as follows:\n<\/p>\n
     “(3): In  considering the\tcase  in
\n     which  a\tVariation   has\t  arisen
\n     between the  contract  alleged  and
\n     that proved,  it must  be borne  in
\n     mind that\tthe burthen of providing
\n     his case  rests, of  course on  the
\n     plaintiff, and  therefore, if there
\n     by any such conflict of evidence as
\n     leaves any\t uncertainty in the mind
\n     of the  court as  to what the terms
\n     of the  parole  contract  were  its
\n     interference   will    be\t refused
\n     (Lindsay vs.  Lynch 2,  Sch. & Lef.
\n     1; cf  Price vs.  Salusbury 2 Beav,\n<\/p><\/blockquote>\n
     446)”\n<\/p><\/blockquote>\n
Fry also  refers to  a case  where  one\t contract  has\tbeen
\nalleged\t in  the  bill,\t another  has  been  proved  by\t the
\nplaintiffs’ one\t witness  and  a  third\t contract  has\tbeen
\nadmitted by the two defendants and where initially. Specific
\nperformance has\t been granted  a per the contract set up  by
\nthe answers.  Fry says: “but Lord Rosslyn considered that in
\nstrictness the\tbill ought to have been dismissed. (Mortimer
\nvs. Orchard,  (2 Ves,. Jun, 243; London and Birmingham Rly .
\nCo. vs. Winter: (Cr. & Ph. 57). In a more recent case, where
\none contract  was alleged  and another\tproved, the bill was
\ndismissed without  prejudice to\t the filing  of another bill
\n(Hawkins vs.  Maltby L.R.  3 Ch.A.  188; the  fresh bill was
\nfiled (L.R.  6 Eq.505 and 4 Ch.200). The inclination of Lord
\nCottenham’s  mind  seems  to  have  been  to  struggle\twith
\napparently conflicting\tevidence rather\t than to dismiss the
\nbill, where  there had\tbeen part  performance’\t (Mundy\t vs.
\nJollife 5  Myl. Cr.p.167).  In one  case Turner L.J observed
\nthat there  are cases  in which the court will go to a great
\nextent in  order to  do justice\t between  the  parties\twhen
\npossession has been taken, and there is an uncertainty about
\nthe terms  of the  contract (East  India Co. vs. Nuthumbadoo
\nVeerasawmy Moodelly  [7 Moo  PCC p.482 at 497]). In the case
\nof  part   performance,\t it  is\t said,\tsimilar\t views\twere
\nexpressed in  the Privy\t Council by Sir William Erle (Oxford
\nvs. Provand L.R. 2 P.C.135) as follows:\n<\/p>\n
     “With  respect   to  the\tsupposed
\n     vagueness\tof   the  memorandum  of
\n     agreement, their  Lordships propose
\n     to\t consider   what  is   the  true
\n     construction  of  that  memorandum,
\n     having regard  to the  terms of the
\n     instrument\t  and,\t  and\tto   the
\n     surrounding circumstances, and also
\n     in\t reference   to\t this  suit  for
\n     specific performance,  and, to  the
\n     conduct  of   the\tparties\t in  the
\n     interval between  the making of the
\n     agreements and  the commencement of
\n     the suit”.\n<\/p><\/blockquote>\n
Fry also  refers to  Hart vs.  Hart (18\t ch.D.670 at 685) in
\nthat context.  The author  then refers\tto cases  where\t the
\nvariation between  the contract\t alleged and  proved  is  an
\nimmaterial variation  and says\tthat in such cases, the bill
\nis granted. He says (p. 301) that this is the position under
\nthe old practice of the Court of Chancery but the High Court
\ncan permit  amendment to  put that  contract in\t issue;\t but
\n“that if  there was  not (i.e.amendment),  it will generally
\ngive judgment for the defendant, without reserving any right
\nto the\tplaintiff to  institute fresh  proceedings. But\t the
\ncircumstances will  govern the\tdiscretion of  the Court  in
\neach case which may arise”.\n<\/p>\n
     The  above\t  principles  are,   it\t is  clear,  special
\nprinciples applicable to suits for specific performance. The
\ncase before us does not fall within the exceptions namely, –
\npart performance  or immaterial variations. Nor is it a case
\nwhere the  plaintiff has  agreed to amend his plaint. On the
\nother hand,  as already\t stated, the  plaintiff spurned\t the
\nopportunity given  to him by the High Court for amendment of
\nplaint. The  case is  in no  way dissimilar  to the cases in
\nGonesh Ram vs. Ganpat Rai and to Mohd. Ziaul Jaque, referred
\nto above.\n<\/p>\n
     (b) Yet  another aspect  of the  matter is whether in a
\nsuit for  specific performance\tthe plaintiff  can be  given
\nrelief under  the general  prayer “such other relief as this
\nHon’ble Court  may deem fit to grant in the circumstances of
\nthe case”,  in the light of Order 7 Rule 7 CPC. order 7 Rule
\n7 CPC reads as follows:\n<\/p>\n
     “Relief to\t be specifically stated:\n<\/p><\/blockquote>\n
     Every    plaint\t shall\t   state
\n     specifically the  relief which  the
\n     plaintiff claims  either simply  or
\n     in the  alternative, and  it  shall
\n     not be necessary to ask for general
\n     or other relief which may always be
\n     given as  the Court  may think just
\n     to the  same extent  as if\t it  had
\n     been asked\t for. And  the same rule
\n     shall apply  to any  relief claimed
\n     by the  defendant\tin  his\t written
\n     statement.”<\/p><\/blockquote>\n
Mulla(CPC) Vol.2  (15th Ed.p.1224) says that such relief may
\nalways be  given to  the same extent as if it had been asked
\nfor, provided  it is not inconsistent with that specifically
\nclaimed, and  with the\tcase raised  in the  pleading.\t(See
\nCargil vs.  Bower [1878\t Ch. D.502,  508]; Kidar Lall Seal &
\nAnother vs. Hari Lall Seal<\/a> [1952 SCR 179]).\n<\/p>\n
     It is  stated  in\tCorpus\tJuris  Secundum\t (Vol.\t81A,
\nSpecific Performance) (Para 189) as follows:\n<\/p>\n
     “In accordance  with general rules,
\n     the relief\t awarded in  a suit  for
\n     specific performance would be based
\n     on\t the   issues  raised\tby   the
\n     pleadings\tand   supported\t by  the
\n     proof.  More  specifically,  relief
\n     awarded for  the plaintiff\t must be
\n     authorised by  or be  in conformity
\n     with his pleading in respect of the
\n     contract to  be  enforced\tand  the
\n     parties thereto”.<\/p><\/blockquote>\n
     As to  the\t ‘general  relief’  in\tsuits  for  specific
\nperformance it is stated:\n<\/p>\n
     “In  accordance  with  the\t general
\n     rules and\tits  qualifications  and
\n     limitations  where\t  the  bill   or
\n     complaint in  a suit  for\tspecific
\n     performance contains  a prayer  for
\n     general  relief,  the  court    may
\n     grant relief   consistent\twith the
\n     facts pleaded  and proved\tand  the
\n     court may\tin some\t cases grant  or
\n     award partial relief.”\n<\/p><\/blockquote>\n
In  other   words,  other  relief  to  be  granted  must  be
\nconsistent with\t both  pleading\t and  proof,  in  suits\t for
\nspecific performance.  The principles stated above under (a)
\nand (b) appear to us to be the broad principles which are to
\nbe borne  in mind  while dealing with exercise of discretion
\nin  cases   of\tspecific  performance.\tWe  decide  Point  3
\naccordingly.\n<\/p>\n
(B) Point 4:\n<\/p>\n
     Strictly, this  point does\t not arise  in view  of\t the
\nprinciples stated under Point 3. But even so, as the counsel
\nhave made elaborate submissions we shall decide the same.\n<\/p>\n
     (a) We shall initially analyse the plaint averments and
\nthen examine  the evidence  limited to\tthe agreement  dated
\n28.4.1984.\n<\/p>\n
     In para  3 of  the plaint\tit is  stated, referring  to
\n25.1.84 meeting\t of the parties at Delhi, that ‘the contract
\nwas also  concluded’, and  that\t it  was  decided  that\t the
\nregistration should take place in June 1984.
\nThe plaint states :\n<\/p>\n
     ‘further correspondance  which only
\n     confirmed that the defendants would
\n     execute the  registered sale  deed.
\n     The   plaintiff\talso\treceived
\n     telegram  addressed   to  Sri  R.K.
\n     Kalyankar that  the  terms\t of  the
\n     agreement are  acceptable and  this
\n     was received  on 4.4.1984. Further,
\n     the 3rd  defendant\t also  confirmed
\n     the  terms\t of  the  agreement  and
\n     wrote a  letter to the plaintiff on
\n     11.4.1984.\n<\/p><\/blockquote>\n
Adverting to  the Bangalore meeting the plaint merely stated
\nas follows:\n<\/p>\n
\t  “The defendants  informed  the
\n     plaintiff that  the first defendant
\n     is purchasing  a flat in University
\n     Compound,\t Delhi\t and   that   he
\n     requires the  amount  and\tthat  he
\n     would receive  the entire amount at
\n     the  time\tof  executing  the  sale
\n     deed. The\tdefendant also said that
\n     the plaintiff  is to  be ready with
\n     the entire\t amount at  the time  of
\n     executing the  sale deed.\t…..The
\n     defendant also  told the  plaintiff
\n     to be  ready with\tthe entire  sale
\n     consideration by about the 3rd week
\n     of June 1984”.<\/p><\/blockquote>\n
     If, as  stated under  Point 1,  there was\tno concluded
\ncontract at Delhi on 25.1.1984, then the above, averments in
\nthe plaint  do\tnot  show  that\t there\twas  an\t independent
\nconcluded agreement at Bangalore. The plaint proceeds on the
\nbasis that  the concluded  agreement, if  any, was  the\t one
\ndated 25.1.1984\t at Delhi.  The paragraph dealing with cause
\nof action (paragraph 9) also, states thus:\n<\/p>\n
     “When the\tdefendants concluded the
\n     contract on  25.1.1984 and\t also on
\n     subsequent\t   dates     when    the
\n     defendants\t further  confirmed  the
\n     agreement of sale…..”<\/p><\/blockquote>\n
     Therefore, there is no specific allegation of any fresh
\nagreement of  sale dated  28.4.1984 in\tthe plaint. Further,
\nthe relief  asked for  in para 11 is only with regard to the
\n‘concluded’ agreement of 25.1.1984 and reads as follows :\n<\/p>\n
     “(a) Specific  performance\t of  the
\n     agreement of sale concluded between
\n     the  parties   on\t 25.1.1984   and
\n     direct………”\n<\/p><\/blockquote>\n
     (b) Permanent injunction……….\n<\/p><\/blockquote>\n
     (c) Cost  of  this\t suit  and  such
\n     other reliefs as this Hon’ble Court
\n     may  deem\t fit  to  grant\t in  the
\n     circumstances of the case”.\n<\/p><\/blockquote>\n
The main  difficulty for  the plaintiff in this case is that
\nhe was thrown away the opportunity granted by the High Court
\nto amend  the plaint for proof of an agreement of sale dated
\n28.4.1984 and  for specific performance of such an agreement
\nof sale dated 28.4.1984.\n<\/p>\n
(b)  We shall  next deal  with the  evidence on this aspect.
\nLearned senior counsel on both sides have referred us to the
\nevidence adduced by the parties in relation to the agreement
\ndated 28.4.1984.  PW 2\tthe person who was corresponding and
\nnegotiating on behalf of plaintiff stated in his evidence-\n<\/p>\n
     “We  did\tnot  get   agreement  on
\n     28.4.1984\t  from\t   the\t   first
\n     defendant.”\n<\/p><\/blockquote>\n
He stated  in regard to the concluded agreement of 25.1.1984
\nas follows:\n<\/p>\n
     “It  is   not  correct  to\t say  on
\n     25.1.1984\t no   transaction   (was
\n     settled) and  sale\t price\twas  not
\n     settled”.\n<\/p><\/blockquote>\n
As already stated, this runs counter to the suit notice sent
\nwherein it is admitted that on 25.1.1984, Ist defendant said
\nat  Delhi  that\t he  has  still\t to  consult  his  brothers.
\nSubsequent correspondance after 25.1.1984 on this aspect, as
\nalready stated,\t is very  clear that  there is\tno concluded
\ncontract as on 25.1.1984.\n<\/p>\n
     So far  as the  plaintiff is  concerned, as PW1 he says
\nthat the  agreement is\tconcluded at  Delhi on 25.1.1984 for
\nRs.5 lakhs  and Ist defendant “confirmed negotiation. I gave
\nfirst defendant\t a rupee  coin”. This  version of  giving  a
\nrupee coin  at Delhi  also shows  that, even at the stage of
\nthe evidence,  PW 1 stuck to a case, of a concluded contract
\non 25.1.1984 at Delhi which is\ttotally contrary to the suit
\nnotice and the correspondance after 25.1.1984.\n<\/p>\n
     In respect\t of the\t 28.4.1984 meeting at Bangalore, PW1
\nstated that  the Ist  defendant was  alone at  Bangalore and
\nthey meet  him and  he said he had to correct some question-
\npapers from  Andhra Pradesh  and that  he had to go to Delhi
\nurgently and  that he  asked the plaintiff “to come again in
\nthe second  week June  1984 and\t also he  told that he would
\ncome to\t Shimoga to  execute registered\t deed. He told us to
\nkeep entire  amount ready  and there  shall  not  (be)\tgive
\ntrouble”. From the above evidence, it could not be said that
\nparties negotiated  afresh at  bangalore and  concluded\t any
\nfresh agreement on 28.4.1984.\n<\/p>\n
     Learned senior  counsel for  appellant  relied  upon  a
\ntelegram dated 4.4.84 (Ex .P7) which reads as follows:\n<\/p>\n
     “Agreement acceptable.  You come to
\n     Delhi  for\t agreement,  if\t unable,
\n     inform”\n<\/p><\/blockquote>\n
Ex. P5\tletter dated  10.4.84 of  Ist defendant to plaintiff
\nstated that  he has received the letter of PW2 on 6.4.84 and
\nit further states:\n<\/p>\n
     “I\t agree\t to  make  agreement  in
\n     accordance with  talks at\tDelhi by
\n     us. It  may be done at Delhi if you
\n     come to  Delhi……Mainly, if mind
\n     satisfied regarding  money, it  may
\n     be done, if it is less or\tmore. As
\n     it is  said  by Kalyankar, we  must
\n     have due it seems”.<\/p><\/blockquote>\n
     On the  next day  11.4.84, the  3rd defendant writes to
\nPW1 Ex\tP6 dated  11.4.84 (produced  by\t plaintiff  PW1)  as
\nfollows:\n<\/p>\n
     “I\t understood   from  my\tbrother,
\n     Dr.C.S.G.K. Setty at Delhi, that he
\n     has  conveyed   to\t you   both   by
\n     telephone and   by letter, that you
\n     should meet him at Bangalore during
\n     the end of April 1984, when he will
\n     be\t   visiting\tBangalore    for
\n     finalising the  agreement as he had
\n     discussed\twith   you  earlier.  he
\n     writes me\tthat he is awaiting your
\n     confirmation”\n<\/p><\/blockquote>\n
Ex. D9\tdated 6.4.84  by PW  2 to  Ist defendant  shows that
\nplaintiff was in a dilemne whether to purchase this property
\nor some\t other property and that plaintiff and ist defendant
\nshould\ttalk   over  the   matter.  This   letter  would  be
\ninconsistent with  there being\tany  concluded\tcontract  by
\n4.4.84 when  telegram Ex.P7  was issued\t by  Ist  defendant.
\nFurther, Ex.P6\twould throw  a doubt as to whether there was
\nany concluded contract by 10.4.84 when Ex. P5 was written by
\nIst defendant.\tIn fact,  the argument\tbefore\tus,  on\t the
\ncontrary, was  that  there  was\t a  concluded  agreement  on
\n28.4.1984 when Ist defendant came to Bangalore.This proceeds
\non the\tbasis that  there was  no concluded agreement before
\n28.4.1984.\n<\/p>\n
     No doubt  the High\t Court has stated that plaintiff and
\nIst defendant  have not\t met at Bangalore on 28.4.1984. This
\nfinding is  wrong as it does not take into account the other
\ntelegram   of Ist defendant Ex. p8 dated 28.4.1984 about his
\narrival at  Bangalore and  the oral  evidence. But from what
\nall PW1,  PW2 stated  as to  what happened  on\t28.4.84,  it
\nappears to us that there is no fresh agreement on 28.4.84 at
\nBangalore and that Ist defendant asked the plaintiff to come
\nto Delhi.\n<\/p>\n
     Considerable  argument  has  been\tadvanced  before  us
\nregarding Ex.P6\t dated 11.4.84\twhich is an inland letter by
\nthe 3rd\t defendant to  plaintiff that  it is not genuine. It
\nbeing an  Inland letter\t bearing  postal  seals,  we  cannot
\naccept the  contention that the letter is not genuine. There
\nis no  such evidence  on plaintiff’s  side  nor\t any  cross-
\nexamination of the 1st defendant.\n<\/p>\n
     Another  argument\t was  that   in\t his  evidence,\t 1st
\ndefendant admitted  that  he  signed  the  draft  agreement.
\nAppellant’s  counsel   has  contended\tthat  this  is\twith
\nreference to  Ex.P3 while Respondent’s counsel has submitted
\nthat this  evidence of\tthe 1st\t defendant has\treference to
\nEx.D11, the draft set up by Ist defendant for Rs.6.50 lakhs.
\nIt has\talso been contended for respondents that there is no
\nsignature of 1st defendant on Ex. P3.\n<\/p>\n
     Applying the legal principles referred under Point 3 to
\nthe above  facts it  will be  noticed – even assuming that a
\ncontract dated\t28.4.1984 at  Bangalore is  proved, which in
\nour view,  is not  proved – that this case does not fit into
\nthe  exceptions\t  stated  by  Fry  on  Specific\t Performance
\ninasmuch as  this is   not  a case where there has been part
\nperformance by\tdelivery of  possession. Nor  can it be said
\nthat the  variation between pleading and proof is immaterial
\nor insignificant.  Plaintiff has  also\trefused to amend the
\nplaint to  seek relief\ton the\tbasis of  an agreement dated
\n28.4.84, keeping the plaint as it is.\n<\/p>\n
     Nor can  this  case  be  brought  with  the  principles
\napplicable  to\t ‘general   relief’   because\tthe   plaint
\nspecifically says  that there  is a  concluded\tcontract  on
\n25.1.1984  at\tDelhi  which  is  belied  by  the  oral\t and
\ndocumentary  evidence.\t However  liberally  the  plaint  is
\nconstrued, all\tthat it\t says is that the 1st defendant came
\nto Bangalore  and asked\t the plaintiff\tto be ready. It does
\nnot speak  of any  fresh agreement entered into at Bangalore
\non 28.4.1984.  Nor are\twe able spell out any such agreement
\nconcluded on  28.4.1984. The  grant of any general relief on
\nthe basis  of an  agreement of\tsale dated 28.4.84 – even if
\nproved –  will be  doing violence  to the  language  in\t the
\nplaint to the effect that the parties concluded an agreement
\non 25.1.1984.\n<\/p>\n
     The High Court on the basis of its findings has held in
\npara 13 as follows: “if only the plaintiff was able to prove
\nthe agreement  as pleaded  by him there was no difficulty in
\ngranting a  decree for specific performance, as the evidence
\non record  does not  disclose that the case falls within any
\nof the\texceptions mentioned either in Section 16 or Section
\n20 of  the Specific  Relief Act. No doubt specific relief is
\nan equitable  remedy and (it is the ) discretion is required
\nto be  exercised judicially  on the  basis of  establishment
\nprinciples of  equity, justice and fairplay”. The High Court
\nthen stated:\n<\/p>\n
     “The  party  has  to  approach  the
\n     Court   with   clean   hands.   The
\n     contract sought to be enforced must
\n     be established.  As  the  agreement
\n     pleaded by\t the plaintiff\thas  not
\n     been established,\ton Point  No. 3,
\n     it is  held that  the plaintiff  is
\n     not  entitled   for  a  decree  for
\n     specific performance.”<\/p><\/blockquote>\n
     Having regard  to the  principles laid  down in  Gonesh
\nRam’s case  [AIR 1924 Cal 461], Ziaul Haque’s case [AIR 1966
\nCal  605)  Halsbury’s  Laws  of\t England.  Fry\ton  Specific
\nPerformance and Corpus Juris Secundum as set out under Point
\n3, we are unable to say that the discretion exercised by the
\nHigh Court  in refusing\t specific performance is contrary to
\nestablished principles.\t Nor can  we say that discretion has
\nbeen exercised in a perverse manner. Finally, we do not also
\nthink  that   this  is\t a  fit\t  case\tfor  exercising\t our
\njurisdiction under Article 136 of the Constitution of India.\n<\/p>\n
     The appeal fails and is dismissed without costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ganesh Shet vs Dr. C.S.G.K. Setty & Ors on 15 May, 1998 Author: M J Rao. Bench: S.B. Majmudar, M. Jagannadha Rao PETITIONER: GANESH SHET Vs. RESPONDENT: DR. C.S.G.K. SETTY & ORS. DATE OF JUDGMENT: 15\/05\/1998 BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO ACT: HEADNOTE: JUDGMENT: THE 15TH DAY OF MAY, 1998 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-196177","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGanesh Shet vs Dr. C.S.G.K. 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