ARJUNDAS PARASURAM v. C. V. KESAVAMURTHY — 1980 DIGILAW 270 (KAR)

G. N. SABHAHIT, J. ( 1 ) THIS appeal by the plaintiff is directed against the judgment and decree dated 11-4-1974 passed by the second Additional District Judge, bangalore, in R. A. No. 39 of 1973, on his file, modifying the judgment and decree dated 27-2-1973 passed by the principal Civil Judge, Bangalore, in os No. 102 of 1971, on his file, and reducing the quantum of damages granted by the learned Civil Judge. ( 2 ) THE plaintiff instituted a suit, for damages claiming total damages of rs. 12,265 from the defendants on the ground that the defendants committed breach of contract, namely, an agreement to sell the suit land. The plaintiff has averred that on or about 26-4-1948 a vacant piece of land then bearing Municipal No. 16 situate in Kumara Park East Extension, bangalore City, was purchased by defendant-5 (Firm) of which defendants 1 and 2 were partners. Defendant-5 (Firm) put up two buildings on the said site - one of them being a block of buildings consisting of 4 flats bearing Municipal Nos. 8, 9, 10 and 11 on the eastern portion of the vacant land and the other building which was put up on the western portion is a residential bungalow bearing Municipal No. 12. Defendant-2 retired from the Firm (defendant-5 ). But defendats 3 and 4 joined the Firm as partners subsequently. On 12-10-1970, defendants land 3 represented to the plaintiff that the defendants wished to sell the block of buildings bearing Municipal nos. 8, 9, 10 and 11 and the vacant space in front and they agreed to sell the same to the plaintiff for Rs. 1,94,000 net, and, pursuant to the agreement, received a sum of Rs. 10,000 from the plaintiff and executed a receipt for the same. The agreement was actually drawn up and executed on 20-10-1970. According to the agreement, the balance of consideration of the sale was to be paid by the plaintiff within a period of three months from the date of the agreement and a regular sale deed was to be obtained from the defendants. The defendants agreed that if they failed to execute the sale deed, they would refund the sum of Rs. 10,000 together with an additional sum of Rs. 10,000 for damages for breach of contract. The defendants were bound to make available all the title deeds in respect of the property. The defendants agreed that if they failed to execute the sale deed, they would refund the sum of Rs. 10,000 together with an additional sum of Rs. 10,000 for damages for breach of contract. The defendants were bound to make available all the title deeds in respect of the property. They did not make available the same to the plaintiff and, accordingly, the plaintiff got issued a lawyer's notice calling upon the defendants to make them available. Some time was extended by mutual agreement to make them available. On 23-2-1971, the plaintiff was served with a letter from the defendants enclosing a power of attorney authorising defendant- 1 to sell his right in the property by defendant-2 soon after the receipt of the letter, the plaintiff got drafted, according to him, a sale deed purporting to be a sale deed of the western portion of the property consisting of the two flats on the western side in the name of his wife as his nominee and the other half being on the eastern side to be conveyed in the name of the plaintiff. In that draft sale deed, however, the plaintiff made it clear that the defendants had to make arrangement for leading the water falling from the roof of the building of the defendants away from the buildings to be sold. He further included a clause that the window in the building of the defendants opening on the premises to be sold to the plaintiff should be closed. He further stipulated that a small strip of land leading to the garages should also be included in the sale deed and he further stated in the notice issued that in case the defendants were not ready to agree to the terms and sell the land, they should return Rs. 10,000 paid as earnest money. The defendants, however, were not agreeable for the additional terms imposed in the draft sale deed and they returned rs. 10,000 paid to them as earnest money on 3-4-71 through their Advocate by means of a cheque. The plaintiff encashed this cheque without prejudice to his right to claim damages for breach of contract. On these averments, the plaintiff has asserted that the defendants have committed breach of contract to sell the land and, as such, he instituted the suit for damages for breach of contract. The plaintiff encashed this cheque without prejudice to his right to claim damages for breach of contract. On these averments, the plaintiff has asserted that the defendants have committed breach of contract to sell the land and, as such, he instituted the suit for damages for breach of contract. He claimed by way of damages the following amounts:" (A) Interest on a sum of Rs, 10,000 received as advance on 12-10-1970 upto 3-4-1971 @ Rs. 1-50% per month. Rs. 865-00 (b) Loss of interest on a sum of Rs. 2,00,000 kept already from 24-11-70 to 3-4-1971 Rs. 11,000-00 (c) Commission paid to the broker Sri Laxmana Rao Rs. 250-00 (d) Notice charges. Rs. 150-00, Total- Rs. 12,265-00"he also claimed costs and current interest in the suit. ( 3 ) THE suit was resisted by defendant-5 (Firm) by filing its written statement. According to the defendants they were ever ready and willing to perform their part of the contract. It was the plaintiff who backed out by trying to vary the terms of the contract originally entered into. In fact, the defendants even agreed to make adjustments with regard to water flowing from the roof immediately the sale deed was executed. With regard to the space leading to the garages, they pointed out that there was no such agreement to sell the space. There was no access to the garages from the residential premises to the plaintiff. The window referred to in the plaint was the window of the kitchen of the residential house of the defendants. It was the main source of light and air to that portion of the building and it abutted the open space in front of the building agreed to be sold to the plaintiff. There was no agreement to close the window originally and the plaintiff could not plead for variance of the contract. Hence, the defendants were mot agreeable to make changes in the contract originally entered into. Unless the variations in the contract were agreed to by the defendants, the plaintiff was not ready and willing to purchase the premises as agreed to. That way, they contended that it is the plaintiff who committed breach of the contract and not the defendants. On that basis, the defendants made out a counter claim by way of damages. They claimed that they had to pay interest on Rs. That way, they contended that it is the plaintiff who committed breach of the contract and not the defendants. On that basis, the defendants made out a counter claim by way of damages. They claimed that they had to pay interest on Rs. 1,00,000 borrowed from the Syndicate Bank since the plaintiff failed to purchase the premises as agreed upon. Under that head, they claimed Rs. 3,750 towards interest by way of damages. They further claimed Rs. 250 given to the broker, Rs. 250 towards drafting charges and Rs. 50 towards notice charges. Thus, in all they claimed Rs. 4,300 by way of damages from the plaintiff and they paid Court-fees upon the same. The other defendants adopted the written statement. ( 4 ) THE suit, OS No, 102 of 1971, was heard by the Principal Civil Judge bangalore City. The learned Civil judge, raised the following issues as arising from the pleadings: (1) Whether the defendants refused to execute the sale deed as alleged in the plaint? or whether the plaintiff committed breach of the contract as alleged by the defendants? (2) Whether the plaintiff is entitled to loss of interest, commission notice charges, in all, Rs. 4,300 as claimed by him in the plaint? (3) Whether the plaintiff is liable for damages of Rs. 4,300 as claimed by the defendants? (4) Tq what reliefs are the parties entitled? ( 5 ) DURING hearing, the plaintiff examined himself and two other witnesses and defendant-1 examined himself on behalf of the defendants the learned Civil Judge, appreciating the evidence on record, held that the defendants committed breach of the contract to sell the property and, in that view, he held that the plaintiff was entitled to Rs. 5,000 as reasonable damages for the breach of contract committed by the defendants. Under issue No. 3, the learned Civil Judge held that even assuming that the defendants did not commit the breach of contract, still, the counter claim of rs. 4,300 made by them was not maintainable. By returning the earnest money of Rs. 10,000 without any reservation whatsoever through the notice Ex-P-17 dated 31-3-71, the defendants, according to him, waived whatever rights they had under the contract. Hence, the learned Civil judge held that the defendants were not entitled to any damages. 4,300 made by them was not maintainable. By returning the earnest money of Rs. 10,000 without any reservation whatsoever through the notice Ex-P-17 dated 31-3-71, the defendants, according to him, waived whatever rights they had under the contract. Hence, the learned Civil judge held that the defendants were not entitled to any damages. Under issue No. 4, the learned Civil Judge held that the plaintiff was entitled to a decree for a sum of Rs, 5,000 being compensation and a sum of Rs. 150 being the notice charges. Accordingly, he decreed the suit of the plaintiff for rs. 5,150 with proportionate costs along with future interest at 6% per annum on the said amount from the date of the suit till realisation. He dismissed the counter claim. His judgment and decree are dated 27-2-1973. Aggrieved by the said judgment and decree, defendants 1, 3 and 5 went in appeal before the Principal district Judge Bangalore, in RA No. 39 of 1973. ( 6 ) THE Second Additional District judge, Bangalore, who heard the appeal, reassessing the evidence on record, held that the defendants committed breach of contract and, as such the plaintiff was entitled for damages. He, however, found that the plaintiff was entitled to damages of only Rs. 975 and not Rs. 5,150 as awarded by the learned Civil Judge. Accordingly, he reduced the damages to Rs, 975 ana? awarded the same to the plaintiff with future interest at 6% per annum along with proportionate costs. Aggrieved by the said judgment and decree, reducing the quantum of damages, the plaintiff has come up in second appeal before this Court and the defendants have filed cross-objections contending that the learned District Judge was not justified in confirming the finding of the learned Civil Judge in holding that the defendants were liable for damages as they committed the breach of contract. They asserted that the plaintiff committed the breach of contract and they were entitled to damages as claimed. They have paid court fees on the claim of damages made. ( 7 ) THE points, therefore, that arise for my consideration in this appeal are: (1) Whether the Courts below were justified in coming to the conclusion that the defendants committed the breach of contract dated 20-10-1970 to sell the property? (2) Whether the plaintiff is entitled to damages? If so, to what quantum? ( 7 ) THE points, therefore, that arise for my consideration in this appeal are: (1) Whether the Courts below were justified in coming to the conclusion that the defendants committed the breach of contract dated 20-10-1970 to sell the property? (2) Whether the plaintiff is entitled to damages? If so, to what quantum? (3) Whether the defendants as entitled for damages? If so to what quantum? ( 8 ) SECTION 16 (c) of the Specific relief Act, 1963, reads:"personal bars to reliej:- Specific performance of a contract cannot be enforced in favour of a person - (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.-For the purposes of clause (c),- (i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the Court; (ii) The plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. ' ( 9 ) THUS, it is settled law that in a suit for specific performance, the plaintiff must aver in the plaint that he has been ever ready and willing to perform his part of the contract right from the date of the contract till the decree of the Court. In the absence of such readiness and willingness, the suit for specific performance is liable to be dismissed. ( 10 ) THE Supreme Court of India, in the case of Gomathinayagam, Pillai v. Palaniswami Nadar AIR 1967 SC 868 . has observed in para-6 of the judgment thus:"but the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. has observed in para-6 of the judgment thus:"but the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. As observed by the Judicial Committee of the privy Council in Ardeshir Mama v. Flora Sasson (AIR 1928 PC 208 216) 'in a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit. ' the respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit" ( 11 ) AS already stated above, Explanation (ii) added to clause (c) of S. 16 of the Specific Relief Act, 1963, makes it clear that the plaintiff must aver and prove his readiness and willingness to perform the contract according to its true construction. It is not enough if he comes forward with a proposal to perform the contract with modifications of his own which change the original contract according to its true construction. Where there is variance between the contract pleaded and the contract proved, the Court has to consider whether the plaintiff was, in fact, ready to perform his part of the contract as it really was. If there was no such readiness on the part of the plaintiff, his suit for specific performance is liable to be dismissed. ( 12 ) IN the case of Parshotam Prasad v. Taimur Ali Shah AIR 1945 All. 39 = 1944 ALJ. 454 the plaintiff alleged that the suit property was to be sold to him free from encumbrances and brought the suit on that basis claiming to retain in his hands part of the price for payment to an encumbrancer. ( 12 ) IN the case of Parshotam Prasad v. Taimur Ali Shah AIR 1945 All. 39 = 1944 ALJ. 454 the plaintiff alleged that the suit property was to be sold to him free from encumbrances and brought the suit on that basis claiming to retain in his hands part of the price for payment to an encumbrancer. It was found that the contract was to sell subject to encumbrances and so the plaintiff could not be said to have been ready and willing to perform his part of the contract in respect of the payment of the full price stipulated in the contract. The suit was accordingly dismissed. ( 13 ) IN Mate Choudhry v. Kamaldha air 1930 Pat 121 the plaintiff alleged that he paid rs. 7,000 out of the purchase money and that the balance to be paid was only rs. 2,000. The Court found that the amount of Rs. 7,000 had not been paid. It could not, therefore, be said that the plaintiff was willing and ready to perform his part of the contract and his suit for specific performance was dismissed. ( 14 ) WITH these in view, I shall proceed to appreciate the facts of the present. case. The contract to sell was admittedly entered into between the plaintiff and the defendants on 20-10-1970. The plaintiff agreed to purchase the block of buildings with some space at Rs. 1,94,000 from the defendants. There was a date also fixed. But, subsequently, since the power of attorney of defendant-2 was not secured, there was some delay. It was condoned by both the parties. Time was extended under Ext. P-8 between them and Ext. P-8 is signed by both the parties. The power of attorney of defendant-2 was secured. Ext. P-10 was sent by defendant-1 to the plaintiff on 21-2-71 telling the plaintiff that the necessary power of attorney would be secured from seshadri after it was duly attested by a Magistrate. Shri Sheshadri was in Ghorakhpur. Ext. P-11 is the power of attorney executed by Sheshadri in favour of defendant-1. It was sent to the plaintiff. Till 21-2-71, there was considerable controversy between the parties regarding the production of title deeds and production of a duly attested power of attorney. After this dispute was cleared, the plaintiff submitted a draft sale deed to defendant 1. Ext. Ext. P-11 is the power of attorney executed by Sheshadri in favour of defendant-1. It was sent to the plaintiff. Till 21-2-71, there was considerable controversy between the parties regarding the production of title deeds and production of a duly attested power of attorney. After this dispute was cleared, the plaintiff submitted a draft sale deed to defendant 1. Ext. P-12 is the covering letter and ext p-13 is the draft sale deed. In ext. P-12, the plaintiff stated that he would be ready with the full amount on the 3rd or 4th March 1971. The draft relates to the property agreed to be sold. The plaintiff wanted the sale deeds one in his own name and the other in the name of his wife. Defendant-1 handed over the draft to his Counsel and the Counsel incorporated certain alterations in the draft proposed by the plaintiff and the same was sent to the plaintiff. Plaintiff's counsel sent a reply on 5-3-1971 categorically stating that he was not agreeable for any alteration in the draft and calling upon the defendants to execute the deed in terms of the draft or else to return the amount paid by the plaintiff and damages. This letter was replied by ext-P-15 issued by the Counsel for the defendants. On 19-3-71, the plaintiff's Counsel wrote to the defendants' Cqunsel once again insisting that the defendants should execute the sale deed as per the draft and, to this, defendant-1 sent a reply as per ex-P-17 dated 31-3-71 disagreeing to do so and returning Rs. 10,000 taken as earnest money and making it clear that it is the plaintiff that was responsible for the breach of agreement. ( 15 ) IN the circumstances, the real question that arises for my consideration is: 'whether the draft sale deed sent by the plaintiff did really represent in essence the contract entered into between the parties or whether it brought about certain modifications contrary to the terms originally agreed? if it is held that the draft sale deed was not in conformity with the original agreement in its essence, it is obvious that the plaintiff was not ready and willing to perform his part of the contract and he would be liable for breach of contract. if it is held that the draft sale deed was not in conformity with the original agreement in its essence, it is obvious that the plaintiff was not ready and willing to perform his part of the contract and he would be liable for breach of contract. If, on the other hand, it is held that the draft sale deed signed by the plaintiff was in essence representing the contract entered into between the parties and the defendants refused to execute the sale deed in terms of the draft then, it is obvious that the defendants committed breach of the contract and that they are liable for damages. ( 16 ) ONE of the terms entered in the draft sale deed was that the defendants should close the window of the kitchen of their residential house. The other proposal was that a triangular strip of land which was necessary to use the garages should also be sold to the plaintiff. The other modification suggested was that the defendants should so arrange that no water from their roof would fall in the land proposed to be sold to the plaintiff. Ex. P-13 is the draft. In that draft, the plaintiff wanted the following to be inserted regarding the window:'the vendors further covenant with the purchaser that in view of the fact that this portion of the property hereby conveyed namely Municipal nos. 8, 9, 10 and 1-1 and the vacant site in front of this is conveyed by the vendors and the bungalow to the east of it namely Municipal No. 12 is retained by the vendors, the vendor shall not be entitled to claim that they may have enjoyed from a window situated in the eastern wall of the premises retained by the vendors and the vendors will forth with close the window within a week from the date of these presents, the purchaser being at liberty to close this window and exclude light or air from this window should the vendors fail to close this window within a period of 7 days as aforementioned. 'as regards the flow of water, the following was proposed to be inserted"the vendors further agree that they shall not be entitled to any rights of easements in regard to flow of rain-water from any portion of the building retained by them and forming premises bearing Municipal no. 'as regards the flow of water, the following was proposed to be inserted"the vendors further agree that they shall not be entitled to any rights of easements in regard to flow of rain-water from any portion of the building retained by them and forming premises bearing Municipal no. 12 on to the property hereby conveyed and agree to forthwith remove the existing two spouts leading the rain-water from the roofs in the eastern wall of the premises No. 12 retained by the vendors and make other arrangements for flow of the water from the spouts into the portion of the property retained by vendors failing which the purchaser shall be at liberty to stop the flow of water from the spouts and collect the costs of the same from the vendors. "the third provision relating to, the triangular site as proposed by the plaintiff in the draft is as under:"the vendors further agree that as there exist two motor garages in the basement of the building hereby sold to the vendor which are approachable from a triangular bit of land abutting the main road parallel to Bangalore-Madras Railway line and to South of the Premises No. 12 retained by the vendors and as this triangular bit of land is also the only access to the Motor garages in the basement of the building retained by the vendors, the vendors agree at all times to keep this vacant triangular bit of land open and unconstructed to be used in common by the purchaser and the vendors in order to afford access to the respective motor garages in the basement of both the properties. "regarding the flow of water, the mentioned in the draft, the lawyer for the defendants wrote in the margin of the draft stating that that clause was absolutely unacceptable as the rights in the property not sold cannot be extinguished. Regarding the flow of water, the counsel far the defendants wrote in the margin that all existing right of the property not sold cannot be taken away and scored out the clause but added a clause that by agreement of the parties the flow of waiter from the roof of the kitchen of the unsold building may be diverted. Regarding the flow of water, the counsel far the defendants wrote in the margin that all existing right of the property not sold cannot be taken away and scored out the clause but added a clause that by agreement of the parties the flow of waiter from the roof of the kitchen of the unsold building may be diverted. As regards the access to the motor garage, it was also deleted with the observation in the margin thus: Not necessary to pass through the triangular bit to go to the garage. The triangular area is the absolute property of vendors and not sold in the sale deed. ( 17 ) LET me first take up the proposed modification regarding the window. In the original agreement entered into, there is absolutely no mention that the window should be closed by the vendors. The window opens on the open space in front of the building proposed to be sold. The plaintiff entered into the agreement with eyes wide open. If it was the intention of the parties at the time of the agreement that the window should be closed it is obvious that such a clause should have been inserted in the original contract. Therefore, it is manifest that the proposed clause in the draft calling upon the vendors to close the window which was the main source of light and air to the kitchen of the residential house retained by the vendors, is a. novation. It is, therefore, obvious that the defendants were perfectly justified in turning down that clause as not embodied in the original contract. ( 18 ) REGARDING the flow of water, there was no serious dispute as the defendants agreed to divert the flow of water from the roof of the kitchen. ( 19 ) REGARDING the proposed clause in the draft sale deed that the open space shall be kept vacant in order to enable the plaintiff to use it as road to the garage, the clause was struck down by the defendants as there was no such clause in the original agreement. The defendants were perfectly justified in doing so. The plaintiff is now claiming by the draft of the sale deed a right in the additional space which was not mentioned in the original agreement. The defendants were perfectly justified in doing so. The plaintiff is now claiming by the draft of the sale deed a right in the additional space which was not mentioned in the original agreement. If he has no other way to bring the vehicles to the garage, it is obvious that by necessary implication, he would get a right by way of easement of necessity. There is no need to mention the same in the sale deed or to sell the open space to him. That only shows that the plaintiff wants to get this additional right which is not stipulated in the original agreement. ( 20 ) THUS, it is clear that the plaintiff is not ready and willing to perform his part of the contract in terms of the contract originally entered into. But he wants to modify the original contract and get the sale deed. In other words, it is obvious that it is the plaintiff who has committed the breach of the contract by not being ready and willing to perform his part of the contract as contained in the original agreement. The notice issued through his lawyer makes it clear that he is ready and willing to purchase the premises only if the clauses put in the draft sale deed are accepted. Otherwise, he wants the earnest money back. It is under these circumstances that the defendants refused to execute the sale deed in accordance with the draft sale deed and they returned the earnest money of Rs. 10,000. On the conspectus of facts, it is obvious that it is the plaintiff that has committed the breach of the contract and that he was not entitled for specific performance. ( 21 ) THE Court, however, relied upon the alleged admission of defendant-1 in the witness-box in holding that the defendants had agreed to all the modifications proposed in the draft sale deed. The learned District Judge, in the course of the judgment, has observed thus:". . More than anything, defendant no. 1 categorically admitted in his cross-examination as follows: 'the only approach to the garage is over the triangular bit of land which I did not intend to sell. I had at no time any objection for the triangular bit of land for being used in common as approach to the garages. . More than anything, defendant no. 1 categorically admitted in his cross-examination as follows: 'the only approach to the garage is over the triangular bit of land which I did not intend to sell. I had at no time any objection for the triangular bit of land for being used in common as approach to the garages. ' then, he further admitted in Paragraph II of his deposition: 'the windows are altogether in the property belonging to me. I did not consult my lawyer whether the person gets easementary right through the window over his own property, conveyed to the plaintiff we are going to remove the spouts as well as the asbestos sheets. I was agreeable for the closure of the windows. ""this is exactly what the plaintiff wanted to insert in the deed of sale and since even according to the defendant, he was willing to close up the windows and divert the water spouts and to allow the plaintiff right to use the common passage to the garage, there cannot be absolutely any objection on his part to the insertion of these clauses in the draft sale deed. " ( 22 ) THE learned Counsel for the defendants rightly pointed opt that what defendant-1 deposed was that with mutual agreement, after the sale he could consider those things and even agree to close the windows. That does not mean that the original agreement contained these things. In fact, in the written statement filed by the defendants, it is very clearly denied that there was any stipulation in the original agreement that the windows should be closed and the open space would be kept open. On the other hand, in para-7 of their written statement, it is stated thus:"on the eastern side of the property to be retained by the defendant firm there is a room where God is installed and another ropm to the south of it is the kitchen. That kitchen has a big windqw, which is the main source of light and air to that portion and it abuts the open space in front of the building agreed to be sold to the plaintiff and it has been so from the date of construction. The plaintiff insisted that window should be closed at all costs. That kitchen has a big windqw, which is the main source of light and air to that portion and it abuts the open space in front of the building agreed to be sold to the plaintiff and it has been so from the date of construction. The plaintiff insisted that window should be closed at all costs. The defendant rightly objected to such a condition and made it clear that whatever right the dejfendants or the plaintiff would be entitled in law as it stood on the day when the sale deed is to be executed, would continue to remain and suggested that the draft sale deed be modified as per the corrections made in it. " ( 23 ) HENCE, it is clearly a misnomer to describe the stray sentences in the deposition elicited in the cross-examination of defendant-1 as admission. ( 24 ) THE Supreme Court of India in the case of Chikkam Koteswara Rao v. Chikkam Subba Rao (4); has observed. Before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. Again, in paras 7 and 8 of the judgment, the Supreme Court of India has made it clear: 7. This admission must be read along with the evidence given by in his chief-examination. . . . . 8. If we read these statements along with his other evidence and in a harmonious manner, it is clear that what the appellant admitted was that the acquisition in question was made by his father on his behalf and the consideration for the same was paid by his father from out of the appellant's private funds ( 25 ) THE Supreme Court of India has also made it clear that the defence taken in the case in the written statement and other parts of the evidence shall be considered before appreciating stray sentence in the deposition which is contended as admission. ( 26 ) THAT being so, reading the defence as well as the stance taken by the defendants, it is obvious that they never agreed to these modifications and they insisted that the sale deed should be executed in terms of the original agreement. ( 26 ) THAT being so, reading the defence as well as the stance taken by the defendants, it is obvious that they never agreed to these modifications and they insisted that the sale deed should be executed in terms of the original agreement. The learned district Judge, therefore, wa,s in error in thinking that the modifications suggested did not essentially change the nature of the contract. ( 27 ) FOR the foregoing reasons, I am of the considered view that it is the plaintiff who committed the breach of contract and not the defendants. In the view that I have taken, it necessarily follows that the plaintiff is not entitled to any damages and, in that view, the cross-objections to that extent are entitled to succeed. ( 28 ) THAT leads me to consider whether the defendants are entitled to any damages as claimed by them in the counter. The trial Court ha? pointed out that the defendants returned the earnest money without any demur and, as such, they have waived their rights if any, to claim damages. There is force in the finding of the Court below. Moreover, the defendants have not proved the alleged damages made out by them. The earnest money of Rs. 10,000 was given to them as soon as the contract was entered into. They returned the earnest money when there was breach of contract by the plaintiff and the earnest money was given back without any demur. The defendants had the advantage of retaining the earnest money till there was breach of contract by the plaintiff. That itself would constitute compensation to the defendants. Hence, I am of the view that the defendants also are not entitled for sny damages. ( 29 ) IN the result, therefore, the appeal is dismissed. The cross-objections are partly allowed. The suit of the plaintiff for damages is hereby dismissed. The cross-objections claiming damages are also dismissed. No costs. --- *** --- .