The interpretation of a contract clause for payment of damages in case of breach and the application of Section 20 of the Specific Relief Act.

1. This is a defendants appeal from a decree for specific performance of a con-tract of sale of a house passed against him.

2. It is not disputed that on 4-4-1949, the defendant executed in favour of the plaintiff a document styled as an Isar Chitti whereunder after reciting that he had received Rs. 125/- as earnest money he undertook to sell a house belonging to him to the plaintiff for Rs. 300/-. the agreement also provided that in case the defendant did not execute a sale deed by 25-5-1949, he will be liable to pay back the earnest money to the Plaintiff and also to pay damages to the extent of Rs. 100/-. According to the plaintiff, the defendant refused to execute a sale deed and that he therefore served a notice on the defendant before the suit to execute a sale deed. But his reply to the notice was that he had not received the whole of the earnest money, that it was not the intention of the parties that the document should operate as a contract of sale and that is why he refused to execute a sale deed. Further according to the plaintiff he had alleged in the notice that he was willing to perform his part of the contract. The defendant denied the contract and said that he is an illiterate person, that he was duped by the plaintiff that he received Rs. 47/- only by way of earnest money and the real agreement between the parties was that the plaintiff was to lend him Rs. 200/- by accepting a mortgage over the ho se in suit. Further according to him the plaintiff would be properly compensated by payment of the money as damages.

3. The trial Court decreed the suit and the lower appellate Court upheld that decree.

4. The first point which was urged before me was that there was no express averment in the plaint to the effect that the plaintiff was ready and willing to perform his part of the contract, that as laid down by their Lordships of the Privy-Council in Ardeshir H. Mama v. Flora Bassoon, ILR 52 Bom. 597: (AIR 1028 PC 208) (A), it was necessary for the plaintiff not only to allege specifically that he was willing to perform his part of the contract but to establish it and that his failure to do so would bring about the dismissal of the suit for specific performance. This decision was followed, by a Division Bench of the Nagpur High Court in Shamjibhai v. Jagoo Hemchand Shah (ILR 1949 Nag. 531): (AIR 1952 Nag 220) (B, to which I was a party and it was observed as follows at pages 601, G02 (of ILR Nag): (at p. 228 of AIR):

"One of the essential factors in a case of this kind is that the plaintiff must first allege and then, if the matter is traversed, prove (a) that he has performed all the conditions which under the contract he was bound to perform and (b) that he has been ready and willing at "all times from the time of the contract down to the date of suit to perform his part of the contract. This principle is set out succinctly in Section 24 (b) of the Specific Relief Act, but It has been expanded by Judicial decision. Their Lordships of the Privy Council hold that though the matter of specific relief is governed in India by the terms of the Specific Relief Act, nevertheless as the Act is founded on the English Law it is permissible, on matters with which the Act does not deal specifically, to refer to the English law. That was decided in ILR 52 Bom. 597: (AIR 1928 PC 208 (A) So far as the present points are concerned, their Lordships hold at P. 619, (of ILR Bom.) : (at. p. 216 AIR):

"In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment, brought with it the inevitable dismissal of his suit."

What is laid down in this decision is that the plaintiff must treat the contract as subsi