IMPORTANT POINTS
• Merely because a contract is capable of specifically enforced, does not mean that the contract shall be specifically enforced. The relief for specific performance being one emanating under the law of equity, various factors like readiness and willingness of the plaintiff, whether on the facts discretion is to be exercised to decree specific performance, are all matters to be considered.
• Court had appointed the plaintiff as receiver of the plaint 'A' schedule property. Admittedly the plaintiff has not complied with the direction to deposit Rs.50,000/per year, except towards the initial year. The defendant shall be entitled to have the balance amounts payable by the plaintiff under the said head appropriated from the advance amount returnable by the defendant to the plaintiff.

These appeals are by the plaintiff and the defendant respectively, In a suit for specific performance of an agreement for sale. The trial court decreed the suit granting the alternate relief of refund of the advance sale consideration.

2. Ext.Al agreement dated 16.12.04 was executed between the plaintiff and the defendant whereunder the plaint 'A' schedule property having an extent of 1.90 acres was agreed to be conveyed by the defendant to the plaintiff for a total consideration of Rs.7,60,000/-, at the rate of Rs.4 lakhs per acre. An amount of Rs.2,75,000/- was paid towards advance sale consideration. It was

stipulated that a further amount of Rs.2,60,000/- shall be paid by the plaintiff to the defendant on or before 05.01.05. The entire balance consideration was to be paid on or before 16.02.05, i.e. within a period of sixty days from the date of Ext.Al. As evidenced by Ext.A2 receipt dated 11.01.05, the plaintiff paid an amount of Rs.3,45,000/- towards the loan account of the defendant with the Meenachil East urban cooperative Bank Ltd. The balance amount that remained payable under Ext.Al agreement was Rs.1,40,000/-.

3. While so, Ext. A3 agreement for sale dated 25.01.05 was entered into between the parties whereunder the defendant agreed to convey the plaint 'B' schedule property also along with plaint 'A' schedule on payment of Rs.30,15,000/- which include the balance sale consideration of Rs.1,40,000/- payable for the plaint 'A' schedule. From out of the said amount, Rs.23 lakhs was reserved to be paid by the plaintiff towards discharge of the loan availed by the defendant from the Bank. The balance payable by the plaintiff was Rs.7,15,000/- out of which Rs.1 lakh is stated to have been paid on the date of Ext. A3, thus making the balance amount payable by the plaintiff to the defendant at Rs.6,15,000/-.

4. According to the plaintiff, pursuant to Ext.A3 agreement, an amount of Rs.1 lakh was paid on 17.02.05 as per Ext.A4 receipt, an amount of Rs.1,50,000/- was paid on 14.03.05 as per Ext.A5 receipt and further amount of Rs.1,05,000/- was paid on 06.05.05 as per Ext.A6 receipt. There was a stipulation in Ext.A3 agreement that another item of property having an extent of 2 acres, which is referred to by the parties as “chotti Property”, which was also mortgaged to the Bank by the defendant along with plaint 'B' schedule was to be got released by the plaintiff from the Bank on or before 25.03.03 i.e. within a period of 60 days from the date of Ext.A3. The plaintiff alleges that due to the non co-operation of the defendant, the same could not be got released resulting in impossibility of performance of Ext.A3. Accordingly, the plaintiff has filed this suit seeking specific performance of Ext.Al agreement and for return of the advance sale consideration paid for the 'B' schedule property under Ext.A3 agreement.

5. The trial court held that Ext. Al agreement has been superseded by Ext.A3 agreement and directed return of the amounts paid by the plaintiff to the defendant. The plea of the defendant regarding damages consequent to the

breach negatived the absence of was in any evidence.

6. Heard learned senior counsel Sri S.V.Balakrishna Iyer on behalf of the plaintiff and learned senior counsel Sri K.Gopalakrishna Kurup on behalf of the defendant.

7. The plea of the defendant is one of novation. According to the defendant, on execution of Ext.A3 agreement, Ext.Al agreement ceased to exist. Hence,

Ext.Al cannot be specifically enforced.

8. Before I go into the factual aspect, it would be necessary to refer to the law relating “novatio”. Section 62 of the Indian contract Act deals with novation, recession and alteration of contracts. The section reads thus:

“62. Effect of novation, rescission, and alteration of contract.-If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it. the original contract need not be performed.”

9. In chitty on contracts, referring to scarf v. Jardine (1882) 7 Ap