Part performance-Limitation - The relief of part performance under Section 12(3) of the Specific Relief Act could be claimed even at the belated stage when the fact of defaulting partys inability to perform a part of the contract comes to light.

1. The only question raised in this appeal filed by the defendant-appellants under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) is whether the relief of specific performance of a part of a contract be maintained under sub-section (3) of Section 12 of the Specific Relief Act, 1963 (for brevity the Act) that has been claimed through an amendment of the plaint by the plaintiff-respondent by accepting the same from the date of filing of the suit.

2. Brief facts of the case are that the plaintiff-respondent had filed Civil Suit No. 727 of 7-9-1989 for possession by way of specific performance of the agreement to sell dated 29-2-1988 in respect of land measuring 56 kanals which is fully detailed in the title of the plaint. The rate of the land fixed in the agreement to sell was Rs. 17,000/- per killa. The plaintiff-respondent claimed to have paid Rs. 15,000/- as earnest money out of total sale consideration of Rs. 1,19,000/-. The sale deed was to be executed and registered by 15-6-1988. The land was under mortgage and the mortgage money was to be retained by the plaintiff respondent out of balance amount of Rs. 1,04,000/- to be paid to the mortgagee at the time of redemption. It was further agreed between the parties that in case of default on the part of the plaintiff-respondent the earnest money was to be forfeited and in case of default on the part of defendant-appellants they were to pay back double the amount of earnest money. An additional agreement was executed on 13-6-1988 as the defendant-appellants expressed their inability to execute the sale deed in view of the injunction order granted against them by the Civil Judge in a suit filed by their brother-one Harbhajan Singh, wherein the sale deed was undertaken to be executed and registered on 31-7-1988. The plaintiff-respondent asserted his readiness and willingness to perform his part of the contract. He had sent notice dated 20-3-1989 but the defendant- appellants did not show their willingness to execute the sale deed in spite of the fact that the suit filed by their brother in which stay was granted had been dismissed on 16-8-1989. As a consequence the suit was filed claiming the relief of specific performance of the agreement to sell dated 29-2-1988 as amended on 13-6-1988. In the alternative prayer for recovery of Rs. 30,000/- as a consequential relief of perpetual injunction restraining the defendant-appellants from alienating the suit land in favour of a third party was also made.

3. Defendant-appellants contested the suit denying the execution of the agreement or receipt of Rs. 15,000/- as earnest money. It was further claimed that the plaintiff-respondent is a defaulting party as he did not have the balance sale consideration nor he was ready and willing to perform his part of the contract. It was further claimed that on account of failure of the plaintiff-respondent to purchase the suit land defendant-appellants had entered into another agreement to sell. According to the agreement to sell one-half share of the suit land is to be sold to one Jasraj Kaur and remaining one-half share has to be sold to one Bharpur Singh and Amardip Singh sons of Ajit Singh. It was further claimed that even the possession has been delivered to those persons and that the suit was liable to be dismissed.

4. On 11-1-1992 the suit of the plaintiff- respondent was decreed for specific performance in respect of land measuring 26 kanals 19 marlas @ Rs. 17,000/- per killa and the total sale consideration has been worked out to be Rs. 57,713/- minus the earnest money. The mortgage amount was also to be retained by the plaintiff-respondent to be paid to the mortgagee at the time of redemption. On 3-8-1993 learned lower appellate Court remanded the case back to the trial Court with the directions that the mortgage amount be determined. It was further ordered that the matter be considered afresh by keeping in view Section 12(3) of the Act. After remand the plain