1965 Supreme(Ker) 330
Judges : S.VELU PILLAI,T.S.KRISHRIAMOORTHY IYER
NAIR SERVICE SOCIETY - Appellant
Versus
R.M.PALAT ALIAS K.P.RAVUNNI MENON - Respondent
Case No : A. S. No. 210 of 1962
Decided On : 12/13/1965
Advocates Appeared :
K. Velayudhan Nair; V. S. Moothathu; K. J. Joseph; M. C. Sen; C. R. Balakrishna Panicker; T. K. M. Unnithm; P. Balakrishna Kurup; For Appellant C. Sankaran Nair; For Respondents
Headnote:
specific performance - contract - S.29 of the Contract Act (I of 1877) - The Moorcock (1889) 14 P. D. 64 - Secretary of State for India in Council v. Volkart Brothers (ILR. 50 Madras 595) - The New Beerbhom Coal Company v. Bularam Mahata (ILR. 5 Cal. 932) - Foley v. Classique Coaches Limited (1934-2-K.B.1) - Milness v. Gery (14Ves. Jun. 400) - Fry's Treatise on the Specific Performance of Contracts - Ext. A1 - Ext. A2 - Ext. A3 - Ext. A4 - Ext. B1 - Ext. B2 - Ext. Cl - Rs. 20,991.71 - Rs. 574/- - Rs. 30,992/- - specific performance not enforceable
Fact of the Case:
The respondent filed a suit for specific performance of a contract and recovery of damages for the removal of trees by the appellant. The trial court granted a decree against the appellant for the value of trees and damages. The appellant appealed against the decree.
Finding of the Court:
The court found that the contract for specific performance was too vague and uncertain to be specifically enforced under S.29 of the Contract Act. The method for fixing the price of the trees in the contract was deemed essential, and as it had failed, the contract was deemed imperfect and not enforceable.
Issues: The main issue was whether the contract for specific performance was too vague and uncertain to be specifically enforced.
Ratio Decidendi: The court held that under S.29 of the Contract Act, a contract with terms that cannot be found with reasonable certainty cannot be specifically enforced. The method for fixing the price of the trees in the contract was deemed essential, and as it had failed, the contract was deemed imperfect and not enforceable.
Final Decision: The court set aside the decree awarding the value of the trees to the respondent and allowed the appeal to that extent. The decree awarding damages for trees cut and removed by the appellant was confirmed and the appeal dismissed to that extent. The memorandum of cross-objection claiming additional value for the trees was dismissed without costs.
1. The second defendant is the appellant. The appeal arises out of a suit filed by the respondent for specific performance of the contract contained in the compromise petition Ext. A1or Ext. B2 dated 19-11-1953 and for recovery of Rs. 1,500/- as damages for the removal of some trees from the property by the appellant.
2. The facts relevant to this appeal are stated below. Ext. Bldated 4-12-1943 is a permanent lease executed by the respondent and others in favour of the appellant for 1000 acres of land. The respondent filed O. S. No. 398 of 1952 on the file of the Munsiff's Court, Walluvanad, against the appellant for an order of injunction to restrain the appellant from entering into the property scheduled in that case on the ground that the appellant violated the terms of Ext. Bland was trying to trespass into the properties which lie adjacent to those included in Ext. Bl. The parties to the suit filed Ext. A1or B2 compromise petition in pursuance of which the suit was dismissed. Ext. A2 is the plan appended to Ext. Aldemarcating the property included in Ext. B1. In the compromise petition it was agreed that the trees in the property delineated in Ext. A2 should be valued by Sri S. K. Nair and Sri. A. Raghavan Nair, the advocates who appeared for the parties in O. S. No. 393 of 1952, or by their nominee within two months of Ext. Aland the price should be deposited by the appellant within 15 days thereafter. If there was any difference of opinion between the advocates in the valuation they should refer the matter to an umpire who should fix the price. The appellant was bound to deposit the price fixed by the umpire for payment to the respondent. The advocates who appeared for both the parties in O. S. No. 398 of 1952 appointed Sri Karunakaran Nair to assess the value of the trees after making a local inspection. He submitted a report to the advocates assessing the value of the trees at more than Rs. 70,000/-. Shri S. K. Nair, by his letter Ext. A4 dated 3-5-1954, addressed to the parties and Sri A. Raghavan Nair, requested that he might be relieved of the responsibility to value the trees under the terms of Ext. Al. Subsequent to Ext. A4, the value of the trees in the property was not fixed by Sri A. Raghavan Nair and Sri S. K. Nair. The respondent. therefore filed the present suit for specific performance of the contract in Ext. A1 by compelling the appellant to pay the value of the trees in the property marked out in Ext. A2 to be determined by the court and also for the recovery of the value of the trees cut and removed by the appellant from the property as damages.
3. A commission was issued by the trial court to value the trees in the property and also to fix the value of the trees cut and removed by the appellant. Ext. Cl is the report of the Commissioner fixing the value of the standing trees and value of the trees removed by the appellant. The value of the trees was fixed at Rs. 20,991.71 while the damage was assessed at Rs. 574/-.
4. The trial court granted a decree against the appellant for Rs. 30,992/-being the value of trees standing in the property and for Rs. 574/-being the damages on account of removal of trees by the appellant.
5. In appeal the decree of the trial court awarding damages was not challenged by the appellant; and we therefore confirm that portion of the decree.
6. Though a number of points were raised by the learned advocate for the appellant against the decree granting specific performance, his main contention was that the contract evidenced by Ext. A1is too vague and uncertain to be specifically enforced. His case was that under S.29 of the Contract Act (I of 1877) "a contract. the terms of which the court cannot find with reasonable certainty, cannot be specifically enforced". The submission of the learned advocate was that Ext. A1did not fix the price for the sale of the standing trees to the appellant and from Ext. Alit is not possible for the court to imply a term that a fair and reas