IMPORTANT POINTS
(1) Specific performance of part of contract – Relinquishment could be made at any stage of litigation including appellate stage – It is not open to High Court to direct specific performance of a part of contract.
(2) Power to grant partial relief is discretionary with court to be exercised keeping in view facts and circumstances of each case.

ORDER :

1. We have heard Mr. S. Nagamuthu, the learned Senior counsel appearing for the petitioner (original plaintiff) and Mr. Balaji Srinivasan, the learned counsel appearing for the respondents (original defendants).

2. This petition arises from the judgment and order passed by the High Court of Judicature at Madras dated 24.03.2023 in Appeal Suit No. 211 of 2013 by which the High Court dismissed the appeal and thereby affirmed the judgment and decree passed by the District Judge of Nilgiris at Udhagamandalam dated 18.02.2010 in Original Suit No. 45 of 2008. It appears from the materials on record that the petitioner herein (original plaintiff) instituted Original Suit No. 45 of 2008 seeking specific performance of the agreement dated 07.11.2005 and for delivery of possession of the suit property. In the alternative, he prayed for Rs. 60,00,000/- with interest at 12 per cent per annum towards the damages from the date of filing of the suit.

3. The Trial Court rejected the prayer for specific performance and directed that the amount of Rs. 20,00,000/- paid by the plaintiff to the defendants towards the earnest money be refunded with interest at 12 per cent per annum.

4. The Trial Court framed the following issues:

“1. Whether the plaintiff is entitled to the relief of specific performance of sale agreement dated 07.11.2005 with modifications as prayed by him?

2. Whether the plaintiff is entitled to possession of the suit property described in the plaint schedule excluding the portion in the possession of the tenants?

3. In the alternative, whether the plaintiff is entitled to refund of the advance amount of Rs.20,00,000/- and for damages to a tune of Rs.40,00,000/- from the defendants?

4. Whether the plaintiff is entitled to claim interest at the rate of 12% p.a. on the above amounts? (end of the 6th page in original)

5. Whether the plaintiff is entitled to charge over the suit property for the above amounts as claimed by him?

6. To what other reliefs the plaintiff is entitled?”

5. The Trial Court recorded a finding that the plaintiff was not ready and willing to perform his part of the contract. Besides, the plaintiff had failed to plead and prove that he has suffered damages.

6. The High Court while deciding the appeals framed the following points for its determination:

“(1) Whether the plaintiff was ready and willing to perform his part of the agreement of sale dated 07.11.2005?

(2) Whether the plaintiff can seek to invoke Sec.12 of the Specific Relief Act, 1963?

(3) Whether the plaintiff is entitled to the discretionary and equitable relief of specific performance?

(4) Whether the plaintiff, in the event of not being entitled to the relief of specific performance, would be alternatively entitled to the relief of damages and refund of advance to the tune Rs.40,00,000/- and Rs.20,00,000/- respectively?”

7. The High Court in Para 35 while discussing Section 12 of the Specific Relief Act (for short, “the Act”) has observed as under:-

“35. Thus, when the plaintiff has chosen to waive only one of the obligations that remained unfulfilled at the end of the defendants, it is not open to the plaintiff to seek shelter U/s.12 and claim specific performance of the part of the agreement of sale in his favour. Interestingly, it is also seen that apart from seeking relief of specific performance, the plaintiff has also made a claim for damages besides refund of advance. Thus, the plaintiff does not qualify to invoke clause (ii) of Sub-Section (3) to Sec.12, when admittedly, he has not relinquished “all claims” and when he approaches the Court seeking damages. This Court also holds that Sec.12(3) is only a discretionary relief, which can be granted to the plaintiff, depending on peculiar facts and circumstances of the case. In the opinion of this Court, Sec.12(3) cannot be invoked where the terms of the contract are not capable of being segregated. In the instant case, we do not find that the agreement of sale can be compartmentalised in order to grant s