DILIP KUMAR SUR v. INTERNATIONAL CONTRACTORS — 1966 DIGILAW 55 (CAL)

( 1 ) THE plaintiff instituted this suit for the recovery of Rs. 40,800/- as damages as alleged in paragraphs 6 and 7 of the plaint or in the alternative an enquiry into damages suffered by the plaintiff and a decree for an amount so found due. The original plaintiff Prasanta Kumar Sur was the owner of a portion of a premises 83, Bagmari Road, Calcutta. The defendant is a Limited Company. On 4th February 1941 the said plaintiff, Prosanta Kumar Sur executed a conveyance in favour of the defendant in respect of the said property and the defendant by an agreement dated 10th February 1941 contracted to reconvey the said property to the plaintiff Prosanta Kumar Sur on the latter paying a sum of Rs. 10,001/- within two years from the date of the agreement. Pursuant to the said agreement the plaintiff Prosanta Kumar Sur offered to purchase the said property but the defendant refused to perform the defendant's part of the agreement. On 10th June 1943 Prosanta Kumar Sur instituted a suit against the defendant being Title Suit No. 44 of 1943 in the Court of the Additional Subordinate Judge, 24 Parganas for specific performance of the contract for resale. The suit was dismissed by the Subordinate Judge on 16th May 1950. An appeal was preferred and on 26th May 1954 the plaintiff's claim for specific performance was allowed on appeal. ( 2 ) ON 19 June 1954 the Plaintiff, Prosanto Kumar Sur deposited the sum of Rs. 10,001/- in Court under the direction of the Court. But the defendant failed to execute the conveyance. On 28 June 1955 the Court executed the conveyance and on 18 July 1955 the conveyance was registered. ( 3 ) IT is alleged in the plaint that the property forming subject matter of the suit had been requisitioned under the Defence of India Act on or about 4 February 1942 and was fetching a monthly compensation with effect from 4 February 1942. The plaintiff alleged that the defendant derived from the said property an income amounting to Rs. 40,800/- between the months of December 1942 on which date the defendant refused to execute the conveyance and 28 June 1955 when the conveyance was executed. The plaintiff alleged that the defendant derived from the said property an income amounting to Rs. 40,800/- between the months of December 1942 on which date the defendant refused to execute the conveyance and 28 June 1955 when the conveyance was executed. The plaintiff alleged that the plaintiff would have received the said income instead of the defendant had not the defendant refused to execute the conveyance and that plaintiff became entitled to the said damages consequent to the judgment on appeal dated 26th May 1964. ( 4 ) IT is also alleged in the plaint that no part of the plaintiffs' claim is barred by limitation in view of the allegations made in paragraph 7 of the plaint and in view of the fact that the plaintiff's cause of action arose on 26 May 1954. ( 5 ) THE suit was instituted on 14 February 1956. On 8 November 1959 the plaintiff, Prosanta Kuamr Sur died and thereupon his heirs and legal representatives were brought on record as plaintiffs in the suit. The defendant in the written statement denied the plaintiffs' claim. The various defences will appear from the issues at the trial. ( 6 ) THE following issues were framed: (1) Is the suit maintainable by reason of Order 2, Rule 2 of the Code of Civil Procedure? (2) Is the claim or any portion thereof barred by limitation? (3) Is the suit maintainable by reason of the provisions of the Specific Relief Act? (4) Is the suit barred by res judicata or principles analogous thereto? (5) Is the plaintiff entitled to the sum of Rs. 40,800/- or any other sum? (6) To what relief, if any, is the plaintiff entitled? ( 7 ) NO oral evidence was adduced. It is an admitted feature of the case that the property was requisitioned and that the amount alleged in the plaint was received during the period the property was requisitioned. ( 8 ) COUNSEL on behalf of the defendant contended, first that the suit is barred by reason of provisions contained in Order 2, Rule 2 of the Code. Secondly, it is contended that the plaintiff did not in the suit for specific performance prefer any claim for compensation and the provisions contained in Section 19 of the Specific Relief Act prevent the plaintiff from making any claim for damages in the present suit. Secondly, it is contended that the plaintiff did not in the suit for specific performance prefer any claim for compensation and the provisions contained in Section 19 of the Specific Relief Act prevent the plaintiff from making any claim for damages in the present suit. Thirdly, it is contended that the plaintiff's claim is barred by limitation. Fourthly, it is contended that the claim for damages is based on breach of contract and no such claim having been preferred in the suit for specific performance the plaintiff is disentitled to any relief in the present suit. ( 9 ) COUNSEL for the plaintiffs on the other hand contended that the plaintiffs' claim for damages is really in the nature of claim for mesne profits and that such a claim for mesne profits is not barred by the provisions contained in Order 2, Rule 2 of the Code. Secondly, it is contended that the claim can be divided into three parts: first, the claim from the date of the agreement up to the date of institution of the suit; secondly, the claim from the date of institution of the suit till the date of the decree; and thirdly, the claim from the date of the decree on appeal till the date of the execution. It is said that at least some portion of the claim is, therefore, not barred by limitation. ( 10 ) COUNSEL for the plaintiffs relied on the decision in (1) Darley Main Colliery Company v. Thomas Wilford Hore Mitchell, reported in 11 Appeal Cases 127 in support of the contention that the plaintiff's claim for damages arose only on the decree and therefore this was a separate cause of action and was not within the mischief of the provisions contained in Order 2, Rule 2 of the Code. In the Colliery case on which reliance was placed by Counsel for the plaintiff the lessees worked the coal and thereby caused subsidence of the land and injury to houses in 1868. For the injury thus caused the lessees made compensation. The lessees worked no more, but in 1882 a further subsidence took place causing further injury. There would have been no further subsidence if an adjoining owner had not worked his coal and if the lessees had left enough support under the land. For the injury thus caused the lessees made compensation. The lessees worked no more, but in 1882 a further subsidence took place causing further injury. There would have been no further subsidence if an adjoining owner had not worked his coal and if the lessees had left enough support under the land. It was held that the cause of action in respect of the further subsidence did not arise till that subsidence occurred. It is obvious that the tortuous act of subsidence in the year 1882 was an entirely new and different tort to the Act of subsidence caused in the year 1868. The basis of tortuous act is that there must be damages by the act complained of. The damages occasioned in the year 1882 were the damages caused by the subsidence of the year 1882. I am unable to see any logic or principle which can be invoked by the plaintiff in aid of the plaintiff's contention in the present case. ( 11 ) THE other decision on which Counsel for the plaintiff relied is (2) Phillips v. Lamdin, reported in (1949) 1 All-England Reports, 770. The plaintiff in that case contracted with the defendant to purchase from the defendant the lease of a house held by him, and 28 March 1947 was fixed as the date for completion. On 25 March the plaintiff's Solicitors sent the draft assignment to the defendant's Solicitors emphasizing that the plaintiff was most anxious to complete if possible on the date fixed and that she would be put to considerable trouble and inconvenience if she was forced to cancel the arrangements. The draft was approved but the defendant informed the plaintiff that he was unable to arrange for possession on 28 March owing to unforeseen difficulties. On 27 March the defendant's Solicitors stated that it would be impossible to give possession for another 6 weeks. The plaintiff's Solicitors emphasized that it was a matter of urgency. On 15 April a writ for specific performance was issued by the plaintiff and in endeavouring to serve it on May 9 the plaintiff's Solicitors discovered that the house was empty. On 5 June the purchase was completed. In an action by the plaintiff for damages in respect of delay in completing the contract it was agued that time was not of the essence of the contract. On 5 June the purchase was completed. In an action by the plaintiff for damages in respect of delay in completing the contract it was agued that time was not of the essence of the contract. It was held that except where delay was due to defect in title or a conveyancing difficulty, damages were recoverable for delay in performance of contract for the sale of an interest in land. In the case of sale of land where the Court of Equity finds that the contract is not concluded owing to some conveyancing difficulty or some difficulty with regard to title, damages are not awarded for loss of the bargain for the reason that uncertainty of title in English law is thought to make an exception to the general rule in (3) Bain v. Forthergill (LR 7 H. C. 158 ). Again, in (4) Jones v. Gardiner ' (1902) 1 Chancery 191)] where the contract provided for payment of interest where there was delay in completion, no further claim for damages for delay could arise. In (5) Jaques v. Miller, (1877) 6 Ch. D. 153, damages were awarded against the vendor in addition to specific performance in respect of delay caused by wilful refusal to carry out a contract and for the measure to be applied in ascertaining the damages it was held that such damages might be reasonably said to have naturally arisen from the delay or which might reasonably be supposed to be in the contemplation of the parties as would likely to arise from the partial breach of contract. In Phillips v. Lamdin, (supra), there was no aspect of claim for specific performance but it was an action for damages for delay in completing the contract. ( 12 ) IN the present case, the plaintiffs' claim for damages is founded on allegations that the defendant received the compensation on account of requisition of the premises and but for the defendant's refusal and neglect to convey the premises, the plaintiffs would have received the same. In other words, the claim is founded on the defendant's refusal to convey in the year 1942. The claim is founded on breach of contract. ( 13 ) THE claim for specific performance is regulated in our country by the Specific Relief Act. In England, the claim for specific performance is a matter of equity. In other words, the claim is founded on the defendant's refusal to convey in the year 1942. The claim is founded on breach of contract. ( 13 ) THE claim for specific performance is regulated in our country by the Specific Relief Act. In England, the claim for specific performance is a matter of equity. Again, in England there is no limitation with regard to claim for specific performance whereas in India claim for specific performance is regulated by Limitation Act. It is true that in England the relief is a matter of discretion and in some cases delay is a plea in barring grant of relief in actions for specific performance. In India, as long as a plaintiff brings a suit during the prescribed period of Limitation, mere delay falling within the period of limitation is no adequate answer to a claim for specific performance. The reasons why I have referred to this is to appreciate the reliefs that the Specific Relief Act affords to parties in cases of contract of sale of land. Contracts which may be specifically enforced are to be founded in Chapter 2 of the Specific Relief Act. In the same chapter, Section 22 deals with decree of specific performance. The other sections deal with such matters as to form whom the contract may be enforced, for whom the contract cannot be enforced or against whom the contract cannot be enforced. These matters are necessary to be remembered in appreciating the gist of a suit for specific performance. In Section 12 of the Specific Relief Act it will appear that specific performance of any contract may be enforced and that the Court shall presume that the breach of a contract for transfer of immovable property cannot be adequately relieved for compensation in money and that the breach of a contract can thus be relieved. Under Section 19 of the Specific Relief Act it is indicated that any person suing for the specific performance of a contract may also ask for compensation for its breach either in addition to or in substitution for such performance. In our country the dismissal of a suit for specific performance is a bar to a suit for compensation in respect of the breach of contract. (See Section 29 of the Specific Relief Act ). In our country the dismissal of a suit for specific performance is a bar to a suit for compensation in respect of the breach of contract. (See Section 29 of the Specific Relief Act ). The claim for compensation or damages on account of a breach of a contract for which the plaintiff files a suit for specific performance is indissolubly mixed up with the contract itself. It is the breach of the contract which is specifically enforced. Specific performance is a relief. Just as a contract is specifically enforced because there has been breach, similarly the plaintiff asking for specific performance may ask for compensation for its breach in addition to or in substitution of such performance. The words in addition to or in substitution of such performance are significant. The significance lies in the fact that the award of compensation arises because of the breach of contract and it may be either in addition to or in substitution of the breach. ( 14 ) COUNSEL on behalf of the plaintiff relied on two decisions of (6) Makhanlal Modak v. Girish Chandra (66 CWN 692) and (7) Santosh Kumar Ghosh v. Sachindra Nath Mukherjee, (62 CWN 759) in support of the proposition that a claim for mesne profits can be separately maintained from a suit for possession and that Order 2, Rule 2 of the Code of Civil Procedure is no bar to the institution of a subsequent suit for mesne profits and therefore the present suit is competent. Counsel for the plaintiff also relied on the Bench decision in (8) Debendra Nath Chowdhury v. Southern Bank Limited, (64 CWN 439) in support of the contention that Order 2, Rule 2 of the Code would not prevent a plaintiff filing a suit for possession subsequent to a suit for specific performance inasmuch as right to possession would arise by virtue of the cause of action of the document and therefore in the present case claims for damages were characterized by the plaintiff as basically claim for mesne profits would arise only pursuant to the decree. I am unable to accept this contention. First, the basis of a claim for mesne profits is based on ownership of the land and that some one has wrongfully occupied the property as a result whereof the plaintiff claim mesne profits. I am unable to accept this contention. First, the basis of a claim for mesne profits is based on ownership of the land and that some one has wrongfully occupied the property as a result whereof the plaintiff claim mesne profits. The definition of mesne profits in the Code of Civil Procedure will be found in Section 2 (12) where mesne profits its means those profits which the person in wrongful occupation of such property actually received or might with ordinary diligence have received therefrom together with interest of such profits but shall not include profits due to improvements made by the person in wrongful occupation. Wrongful possession of the defendant is the very essence of a claim or mesne profits and the very foundation of a decree thereof and there can be no claim for mesne profits if the possession of the defendant has not been wrongful. In the case of a sale of land it will appear from Sections 54 and 55 of the Transfer of Property Act that a contract for the sale of immovable property is a contract that does not of itself create any interest or charge on such property. In other words, a bare contract for sale does not confer any interest or charge on the property. The English doctrine is that a contract for sale transfers an equitable estate to the purchaser. The Transfer of Property Act abolishes that English doctrine and the law of India does not recognize any equitable estate and the English rule that the contract makes the purchaser owner in enquity of the estate does not apply in India. The Judicial Committee in (9) Mian Pir Bux's case, (61 IA 388), held that apart from Section 53a of the Transfer of Property Act, an averment of the existence of a contract of sale whether with or without any averment of possession following upon the contract is not a relevant defence to an action for ejectment in India. It has also been held that a person who has contracted to buy land is not the owner of the interest in land and is therefore not competent to apply to set aside an execution sale of the land. A contract of sale is merely a document creating a right to obtain another document and therefore it does not require registration either. A contract of sale is merely a document creating a right to obtain another document and therefore it does not require registration either. Again, in Section 55 of the Transfer of Property Act it will appear from sub-section 4 (a) that in the absence of a contract to the contrary, the buyer and seller of immovable property are subject to the liabilities and rights mentioned in Section 55 and the seller is entitled to the rents and profits of the property till the ownership thereof passes to the buyer. This statutory provision establishes that it cannot be said that the seller in receiving rents or profits of the property till ownership passes to the buyer is doing any wrongful act, there cannot be any claim for mesne profits or damages. Section 55 of the Transfer of Property Act declares the sellers right to received rents and profits till the ownership passes to the buyer. This section also shows that possession should be given by the seller when ownership passes to the buyer. ( 15 ) IN equating the plaintiff's claim for damages with mesne profits there are two fallacies. First, the plaintiff does not becomes the owner of the property until the conveyance and the plaintiff did not pay any purchase money and under the provisions of the Transfer of Property Act the plaintiff was not entitled to any rents and profits. Secondly, the plaintiff's claim for damages is a relief in addition to or in substitution of the breach of contract. This claim for damages or the relief which the Court awards under Section 19 is a part of the statutory relief which the plaintiff in a suit for specific performance may obtain whereas the claim for mesne profits is available to owners who have been dispossessed or owners who though not dispossessed find others in wrongful occupation of the property. In the present case the plaintiff asked for damages for the period from the refusal of the defendant to execute the conveyance up to the execution of the conveyance. The claim is one and that is arising from breach of contract though counsel for the plaintiff attempted to divide the claim into three periods. The claim could not be truncated into three several claims because the claims founded on the head of damages. The claim is one and that is arising from breach of contract though counsel for the plaintiff attempted to divide the claim into three periods. The claim could not be truncated into three several claims because the claims founded on the head of damages. It may be convenient for counsel to describe the claim as falling under three different periods but it will be wrong to hold that the claim for damages arose at different periods as different heads of damages. In essence the claim is for damages and that arose on the breach of contract and therefore the plaintiff's claim characterized by counsel for the plaintiff as mesne profits is wrong in law and the Judicial Committee observed the same as falling within the vice of splitting the cause of action. ( 16 ) IN the case of (10) Naba Kumar Hazra and others v. Radhashyam Mahish and others, reported in AIR 1931 PC 229 a question arose as to whether the relief for rent and profits which could have been prayed for in a previous suit for conveyance of properties and arising out of the same cause of action could be prayed for in a subsequent suit. The appellants purchased a mortgage decree. The purchase of the property by them was made a few months later during the pendency of the suit. In the Appellate Court the plaintiffs in that suit had not asked for assignment of the mortgage decree but only for declaratory relief. They subsequently amended their plaint and prayed for assignment. The High Court varied the decree of the lower Court by including in it a direction that the properties should also be conveyed to the respondents but made no order for accounts. Thereafter the suit was filed with regard to rent and profits for which they had not accounted. Their Lordships of the Judicial Committee held that the claim was plainly barred by Order 2, Rule 2 of the Code. The Judicial Committee said : the Rule in question is intended to deal with vice of spitting a cause of action. Thereafter the suit was filed with regard to rent and profits for which they had not accounted. Their Lordships of the Judicial Committee held that the claim was plainly barred by Order 2, Rule 2 of the Code. The Judicial Committee said : the Rule in question is intended to deal with vice of spitting a cause of action. It provides that a suit must include the whole of any claim which the plaintiff is entitled to make in respect of the cause of action on which he sues, and that if he omits (except with the leave of the Court) to sue for any relief to which his cause of action would entitle him, he cannot claim it in a subsequent suit. The object of the salutary rule is doubtless to prevent multiplicity of suits. In the case before the Judicial Committee it was found that the cause of action was the same as in the previous suit namely the right to the rents and profits vested on the same foundation of facts and law as the right to have the purchase of the decree and of the properties declared to be purchased for the mortgagors. In the present case the claim of the plaintiffs to damages is based on the claim for conveyance founded on the agreement to convey and all damages which the plaintiffs claim flow from the breach of that agreement. The claim for specific performance on the one hand and the claim for damages on the other are inextricably bound up with each other and these flow from the same contract and the very same breach. It is therefore within the mischief of the provision contained in Order 2, Rule 2 of the Code. ( 17 ) COUNSEL for the defendant relied on the decision in (11) S. Ramalingam Pillai v. G. R. Jagadammal and another, reported in AIR 1957 Andhra Pradesh 960 in support of the contention that the plaintiffs' argument that the claim for damages was in essence claim for mesne profits was not sustainable in law. In the Andhra Pradesh decision the defendant agreed to sell her lands to the plaintiff. The defendant committed default. The plaintiff filed the suit for specific performance. There was a decree. The decree was executed. The plaintiff obtained possession. In the Andhra Pradesh decision the defendant agreed to sell her lands to the plaintiff. The defendant committed default. The plaintiff filed the suit for specific performance. There was a decree. The decree was executed. The plaintiff obtained possession. That the plaintiff can file a suit for possession after a suit for specific performance is obvious because the two reliefs are based on entirely different causes of action. It may be that after execution of the conveyance there may not be occasion for any claim for possession and possession may be delivered. In the Andhra Pradesh decision the suit was filed for profits from the date of the institution of the suit up to the date of possession. It was argued that it was a claim for mesne profits. That claim was rejected by holding that the possession of the vendor would be said to be wrongful or that the vendor was bound to account to the purchaser for profits. The claim for damages was also repelled by holding that the claim for compensation should have been put forward under Section 19 of the Specific Relief Act. In the present case counsel for the defendant in my view rightly contended the decision is on all fours with the facts and circumstances of the present case because the plaintiffs in the present case presented the claim for damages from the point of view of mesne profits and plaintiffs further wanted to sustain the claim irrespective of the provision contained in Order 2, Rule 2 of the Code. ( 18 ) COUNSEL for the defendant also relied on the decision in (12) Protap Chandra Kayal v. Kalicharan Acharya, reported in AIR 1963 Cal 468 where P sold certain land to K and agreed to pay K the price within certain time and K in turn agreed to reconvey the land on such payment. K failed to reconvey the land. P filed a suit for specific performance in 1945. The suit was decreed in 1951. P obtained reconveyance and possession of the land in execution in 1951. In 1954 P sued K for compensation and claimed the usufruct accrued to K from the date of breach of contract till the date of decree for specific performance. P filed a suit for specific performance in 1945. The suit was decreed in 1951. P obtained reconveyance and possession of the land in execution in 1951. In 1954 P sued K for compensation and claimed the usufruct accrued to K from the date of breach of contract till the date of decree for specific performance. It was held that as far as the claim for compensation from the date of breach of contract until the institution of the suit as also the claim for the date of the suit till the date of the decree for specific performance the plaintiff not having availed of Section 19 of the Specific Relief Act lost the right of a further suit founded on the same cause of action. It was argued that the plaintiffs' claim for mesne profits would arise only on the execution of the deed of reconveyance and as that fell outside the period for which the claim was made it could not be allowed. ( 19 ) IN the present case the question of limitation arises and it can be viewed from two aspects. If the claim arises from breach of contract as in my opinion it does the whole claim is barred by limitation. This is irrespective of the other conclusion which I have reached namely that the suit is bad by reason of the mischief of the provisions contained in Order 2, Rule 2 of the Code and the provision contained in Section 19 of the Specific Relief Act. Counsel for the plaintiff submitted that the plaintiffs' claim was really for mesne profits and therefore the claim arose because of the decree and it was a right flowing from the decree and therefore it was not barred by limitation. The fallacy is that the plaintiffs' right to damages arises from breach of contract. If it arises from breach of contract the plaintiff has no claim which can be upheld in law. I have already indicated that the plaintiffs are not entitled to claim mesne profits. If on the other hand the plaintiffs try to divide the claim into several parts the claim yet relates in law to one head of breach of contract and it falls within the mischief of limitation. I have already indicated that the plaintiffs are not entitled to claim mesne profits. If on the other hand the plaintiffs try to divide the claim into several parts the claim yet relates in law to one head of breach of contract and it falls within the mischief of limitation. I am unable to accept the contention on behalf of the plaintiff that it is a claim for mesne profits which arose from month to month or that it was a claim which arose die in diem. The plaintiff formulated the claim as having been founded on the date of breach of contract. ( 20 ) THE Judicial Committee in the decision reported in AIR 1931 PC 229 left open the question as to whether a suit of this description would be barred by res judicata. Counsel for the defendant rightly submitted that if the suit fell within the mischief of Order 2 Rule 2 of the Code the plaintiffs' claim failed. Clauses for the defendant also in my view rightly contended the suit would fall within the mischief of constructive res judicata by reason of the plaintiff not having availed of any other relief that the plaintiff had in regard to breach of contract. For all these reasons, I am of opinion, that the plaintiff is not entitled to any relief. The suit is dismissed with costs. Certified for two Counsel. Suit dismissed with cost.