A suit at the instance of a developer is not prohibited by Section 14(3)(c) of the Specific Relief Act and a power of attorney executed by an owner in favour of the developer for effectuating the terms and conditions of the development agreement does not give a bare agency to the developer but it gives the developer an interest in the property which forms the subject-matter of the agency.

ASHIM KUMAR BANERJEE, J.

I have gone through the painstaking well versed judgment of My Lord the Hon’ble Mr. Justice Sanjib Banerjee. I fully endorse his view. Yet I wish to add few lines looking at the problem slightly from a different angle.

2. The owners would contend, section 14(3)(c)(iii) would specifically debar a developer to file a suit for specific performance against the owner of the property. They would gain support from Vipin Bhimani, (AIR 2006 Cal 209) (supra). They would also contend, we must give literal meaning to the provision that the Apex Court recognized as the golden principle of interpretation as observed in Lalu Prasad Yadav v. State of Bihar (AIR 2010 SC 1561) (supra).

3. The relevant extract of section 14 is set out below:

1) “The following contracts cannot be specifically enforced, namely;

a) a contract for the non-performance of which compensation in money is an adequate relief;

b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms;

c) a contract which is in its nature determinable;

d) a contract the performance of which involves the performance of a continuous duty which the Court cannot supervise.

2) ……………………….

3) notwithstanding anything contained in Clause (a) or Clause (c) or Clause (d) of sub-section (i), the Court may enforce specific performance in the following cases :-

a) …………………………………..

b) ………………………………………………

c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land:

Provided that the following conditions are fulfilled, namely:

i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;

ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and

iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.”

4. The golden rule of interpretation so observed by the Apex Court is well recognized for decades. There is one more rule prevalent i.e., the Court of law must interpret a provision by giving harmonious construction presuming, all statutory provisions are coherent and would have no conflict with each other unless it is apparent and unless it is made specific by a non-obstante clause. If we look to section 10, we would find, the contract could be enforced when there would exist no standard for ascertaining actual damage and damage, even if granted in terms of the money, would not afford adequate relief. The explanation would further make it clear that a breach of a contract to transfer immovable property could not be adequately relieved by compensation in money. Hence, a contract dealing with an immovable property under Section 10 along with its explanation would presumably suggest enforcement that would be controlled by Section 14.

5. Let us now try to find out whether there was any specific bar stipulated in the said provision. It is true sub-section (3) would start with a non-obstante clause that would, however, exclude sub-section (1)(a) and (c) and not any other provision of the said Act. Sub-section (1)(a) would grant adequate money relief whereas sub-section (1)(c) would talk about a determinable contract. Sub-section (3)(c) would make a contract relating to an immovable property enforceable in case of construction or execution of any other work on the said property. The proviso would, however, make certain contracts outside the purview that would include sub-Section (3)(c). The sub-section would exclude the contract where the defendant obt