2004 Supreme(SC) 917

2004(6) Supreme 331
SUPREME COURT OF INDIA
(From Kerala High Court)
Ashok Bhan & S.H. Kapadia, JJ.
Shamsu Suhara Beevi -Appellant
versus
G. Alex & Anr. -Respondents
Civil Appeal No. 3729 of 2000
Decided on 20-8-2004
Counsel for the Parties :
For the Appellant : E.M.S. Anam, Advocate.
For the Respondents : V.J. Francis, Advocate.

IMPORTANT POINT
In a suit for specific performance compensation u/s 21 of the Specific Relief Act either in addition to relief of specific performance or in substitution cannot be granted in absence of prayer made in plaint.

Headnote:Specific Relief Act, 1963-Sections 21(5) and 28-Suit for specific performance of agreement to sell suit property decreed on 24.7.1997 and respondent plaintiff deposited balance of sale consideration Rs. 34,66,385 on 23.10.1997 besides Rs. 10 lakhs already paid as earnest money-Sale deed was executed by defendant-Appellant on 17.8.1999-Application by plaintiff-respondent in 1997 to measure suit property to ascertain exact extent of land and another application claiming interest at 12% on Rs. 44,66,385/- from date of deposit till registration of sale deed-Trial Court allowed both applications and respondents-plaintiffs were permitted to recover Rs. 12,77,780/- -High Court found Section 28 of the Act would not be attracted but held respondents entitled to compensation u/s 21 of the Act-Appeal-Whether compensation could be awarded in a suit for specific performance in addition to or in substitution of specific performance of agreement without making a claim for such compensation either in original plaint or by amending the plaint? No.

       Held : It is admitted position before us that in the original plaint the respondents did not claim compensation for the breach of agreement of sale either in addition to or in substitution of the performance of the agreement. Further the respondents did not amend their plaint and ask for compensation either in addition to or in substitution of the performance of the agreement of sale. Sub-section (5) of Section 21 emphatically provides that no compensation shall be awarded under section 21(5) unless the relief for compensation has been claimed either in the plaint or included later on by amending the plaint at any stage of the proceedings. The need to file an execution petition did not arise as the appellant 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 performance in the absence of prayer made to that effect either in the plaint or amending the same at any later stage of the proceedings to include the relief of compensation in addition to the relief of specific performance. Grant of such a relief in the teeth of express provisions of the statute to the contrary is not permissible. On equitable consideration court cannot ignore or overlook the provisions of the statute. Equity must yield to law. (Para 11)

       The learned Single Judge has also erred in including the amount of cost which have been awarded in the main suit towards the amount of compensation. Of course, the plaintiff/respondents are entitled to recover the amount of cost which has been decreed in the main suit but the same cannot form part of compensation by way of additional relief to the specific performance of the agreement of sale. (Para 13)