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2009 DIGILAW 127 (CAL)

Sushil Kumar Agarwal v. Kalidas Sadhu

2009-02-18

BHASKAR BHATTACHARYA, TAPAN KUMAR DUTT

body2009
Judgment : BHASKAR BHATTACHARYA, J. (1) This first appeal is at the instance of a plaintiff in a suit for specific performance of contract and is directed against the judgment and decree dated 28th February, 2007, passed by the learned Judge, Second Bench, City Civil Court at Calcutta, in Title Suit No.1150 of 2003 thereby dismissing the said suit on the sole ground that the suit, being one for specific performance of a contract for construction of building, was not maintainable in view of the provisions contained in Section 14(3)(c) of the Specific Relief Act. (2) Being dissatisfied, the plaintiff has come up with the present appeal. (3) The plaintiff/appellant filed the aforesaid suit initially claiming the following relief: "a) Leave under Order II Rule 2 of the Code of Civil Procedure. b) A decree for declaration that the alleged letter dated 19th May, 2003 purportedly issued on behalf of the defendant has no force in the eye of law and is not binding on the parties. c) A decree for permanent injunction restraining the defendant, his men, agents, servants and employees from encumbering the said premises No.243N, Acharya Prafulla Chandra Road, P.S.- Burtolla, Kolkata as described in the schedule below from parting with possession, inducting any person thereat or in any manner whatsoever. d) A decree for permanent injunction restraining the defendant from entering into an agreement with any third party in respect of the construction and/or development of the premises No.243N, Acharya Prafulla Chandra Road, P.S.-Burtolla, Kolkata as described in the schedule below. e) Ad-interim order of injunction in terms of prayers (c) and (d) above. f) Receiver. g) Commission. h) Costs. (i) Such other or further relief or reliefs to which the plaintiff may be found entitled." Subsequently by way of amendment, the plaintiff prayed for the following relief as the main relief in addition to the abovementioned relief original claimed: "(a)(i) Specific performance of the contract dated 14.04.1992 modified pursuant to the writing dated 09.04.2002 entered into by and between the parties herein." (4) The case made out by the plaintiff in the amended plaint may be summed up thus: (a) A proposal came to the plaintiff for development and promotion of the premises No.243N, Acharya Prafulla Chandra Road, P.S.-Burtolla, Kolkata, as described in the schedule of the plaint, of which the defendant was the owner. The plaintiff agreed to the said proposal and a written agreement dated 14th April, 1992 was entered into between the parties by which the defendant promised to handover the suit property free from all encumbrances to the plaintiff; but after the execution of the said agreement, it was found that the premises were not free from all encumbrances and in fact, huge municipal tax and electricity charges remained unpaid and at the same time, labour and industrial disputes, etc. were subsisting. (b) The defendant, as per the said agreement, agreed to obtain clearance from KMDA, CIT and also Kolkata Municipal Corporation, but subsequently he expressed his inability to bear the costs, expenses and responsibility of the same and requested the plaintiff to undertake those jobs with the assurance that the defendant would pay the costs and expenses thereof to the plaintiff before the sanction of the building plan in respect of the said premises. (c) Pursuant to such agreement, the plaintiff spent a sum of Rs.7,03,000/-in addition to the advance of Rs.4,00,000/- already paid at the time of execution of the agreement. (d) The plaintiff spent a further amount of Rs.18,41,000/-towards the incidental and miscellaneous expenses for the development of the said site as indicated in paragraph 5 of the plaint. (e) On the persuasion of the plaintiff, a plan in respect of the said premises was duly sanctioned by the Kolkata Municipal Corporation and the plaintiff made a bank-pay-order for Rs.3,36,387/- ready on 13th February, 2002 for the purpose of depositing the same with the K.M.C. towards sanction fee. (f) As a lot of work had yet to be done on behalf of the defendant in terms of the agreement dated 14th April, 1992, the parties decided that the defendant would execute a Power of Attorney in favour of the plaintiff to enable him to do such job on behalf of the defendant. Accordingly, the plaintiff on 12th March, 2002 got a Power of Attorney prepared and after getting the same ready sent the same to the defendant for completion of formalities. (g) The defendant on receiving the said letter dated 12th March, 2002 from the plaintiff totally denied that he had executed any agreement on 14th April, 1992 and also denied all his liability under the said agreement. (g) The defendant on receiving the said letter dated 12th March, 2002 from the plaintiff totally denied that he had executed any agreement on 14th April, 1992 and also denied all his liability under the said agreement. (h) In view of the defendants changed stance, the plaintiff again wrote a letter dated 4th April, 2002 to the defendant stating therein that the plaintiff was ready and willing to do the said job as per agreement but the defendant was reluctant to do his part of the work. By the said letter, the plaintiff again requested the defendant to send him the letter of authority to enable the plaintiff to deposit the pay order towards sanction fee. (i) Subsequently, in a meeting held in the chamber of an Advocate on 9th April, 2002, the earlier agreement dated 14th April, 1992 was modified to some extent and the said modified term was recorded in the minutes of the meeting and those were signed by the parties at the said meeting. (j) As even on the basis of such modified agreement, the defendant failed and neglected to comply with his part of the obligations, the plaintiff through his learned Advocate wrote a letter called upon the defendant to perform his part as per agreement. (k) The plaintiff apprehended that the defendant was trying to wriggle out of his liability by engaging another developer after assigning the job to the plaintiff. Hence the suit. (5) The suit was contested by the defendant by filing written statement as well as an additional written statement thereby denying the material allegations made in the plaint and the defence of the defendant may be summarised thus: (1) The suit was not maintainable and was bad for non-joinder of necessary parties and was at the same time, barred by limitation. (2) There was no outstanding due as falsely alleged in the plaint. There were municipal dues because of the fact that an objection was raised against enhancement of tax during the current reassessment by the Kolkata Municipal Corporation. (3) It was denied that the plaintiff spent a sum of Rs.7,03,000/- in addition to the advance of Rs.4,00,000/-. (2) There was no outstanding due as falsely alleged in the plaint. There were municipal dues because of the fact that an objection was raised against enhancement of tax during the current reassessment by the Kolkata Municipal Corporation. (3) It was denied that the plaintiff spent a sum of Rs.7,03,000/- in addition to the advance of Rs.4,00,000/-. According to the defendant, the plaintiff paid to him a sum of Rs.4,00,000/- at the time of entering into the agreement and the said amount was refundable without interest after completion of the building and besides the said amount, no further amount was taken. (4) The allegations as regards payment of various amounts stated to have been spent by the plaintiff as shown in the plaint were denied. (5) When the plaintiff realised that due to his own laches a period of 10 years had passed and the agreement lost its force or became invalid, he started to pursue the defendant by offering 5 percent more share over and above the allotted portion in the earlier agreement. (6) The defendant served a notice dated 19th May, 2003 upon the plaintiff through his Advocate calling upon him to return all the relevant documents, plans and certificates within 7 days and cancelled the said agreement dated 14th April, 1992. The suit was, therefore, liable to be dismissed. (6) At the time of hearing, the plaintiff deposed as P.W.-1 and apart from the plaintiff, one Samit Pani Brahmachari gave evidence in support of the plaintiff while the defendant himself deposed in opposing the prayer of the plaintiff. (7) As indicated earlier, by the judgment and decree impugned herein the learned Trial Judge has dismissed the suit only on the ground that a suit for specific performance of agreement for construction of building was not enforceable at the instance of a contractor in view of the provision contained in Section 14(3)(c) of the Specific Relief Act. (8) Being dissatisfied, the plaintiff has come up with the present appeal. (9) Therefore, the only question that arises for determination in this appeal is whether a suit for specific performance of contract for enforcement of construction of a building is maintainable at the instance of a developer in view of the provisions contained in Section 14(3)(c) of the Specific Relief Act, 1963 (hereinafter referred to as the Act). (9) Therefore, the only question that arises for determination in this appeal is whether a suit for specific performance of contract for enforcement of construction of a building is maintainable at the instance of a developer in view of the provisions contained in Section 14(3)(c) of the Specific Relief Act, 1963 (hereinafter referred to as the Act). (10) In order to appreciate the question, it will be profitable to refer to the following provisions of Section 14 of the Act in its entirety: "14. Contracts not specifically enforceable.(1) The following contracts cannot be specifically enforced, namely, (a) a contract for the non-performance of which compensation in money is an adequate relief; (b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (c) a contract which is in its nature determinable; (d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise. (2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit. (3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of subsection (1), the court may enforce specific performance in the following cases (a) where the suit is for the enforcement of a contract, (i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once: Provided that where only a part loan has been advanced and the lender is willing to advance the remaining part of the loan in terms of the contract; or (ii) to take up and pay for any debentures of a company; (b) where the suit is for, (i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or (ii) the purchase of a share of a partner in a firm; (c) where the suit is for the enforcement of contract for the construction of any building or the execution of any other work on land: (11) Provided that the following conditions are fulfilled, namely, (i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work; (ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and (iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed." A plain reading of the aforesaid provision makes it clear that subsection (1) thereof speaks of four different general categories of contract which cannot be enforceable in a Court of law by claiming a decree for specific performance. Subsection (2) thereof provides that save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit. Sub-section (3) of the said Section is an exception to subsection (1) and refers to five different species of contract which although by applying the principles laid down in clauses (a), (c) and (d) of sub-section (1) cannot be specifically enforced, yet, a suit for specific performance of those five specified contracts can succeed provided the further conditions mentioned therein are satisfied. (12) Following are those species of contract mentioned in sub-section (3): A) A contract to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once. In view of Sub-section (1), a suit for specific performance of such a contract is not maintainable but by virtue of clause (a) to sub-section (3), such a suit will succeed only if in such a case, a part-loan has been advanced and that the lender is willing to advance the remaining part of the loan in terms of the contract. B) A contract to take up and pay for any debentures of a company. Such a contract, although in view of its nature is barred under Subsection (1), can be specifically enforced by taking aid of sub-section (3). C) A contract for the execution of a formal deed of partnership. Although such a contract cannot be specifically enforced in view of the restriction imposed under sub-section (1), by taking the benefit of exceptions provided in sub-section (3), it can be specifically enforced only if the parties to the contract have commenced to carry on the business of the partnership and not otherwise. D) A contract for the purchase of a share of a partner in a firm. This contract is also an exception like a contract mentioned in B above and but for the special benefit given in sub-section (3), the same was not enforceable in view of the restriction imposed in sub-section (1). E) A contract for the construction of any building or the execution of any other work on land. This contract is also an exception like a contract mentioned in B above and but for the special benefit given in sub-section (3), the same was not enforceable in view of the restriction imposed in sub-section (1). E) A contract for the construction of any building or the execution of any other work on land. (13) This contract is also barred in view of the general prohibition mentioned in subsection (1), but if all the following three conditions are satisfied, such contract can be enforced by filing a suit for specific performance of contract by way of exception; however, in the absence of existence of any of those conditions, such a suit for specific performance will not be mentionable: (i) The building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work; (ii) The plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for nonperformance of the contract is not an adequate relief; and (iii) The defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed. The present case is undoubtedly one for specific performance for enforcement of a contract for the construction of building on a land owned by the defendant and thus, the suit is not maintainable against the owner of the building as in such a situation, clause (iii) of subsection (3) (c) is, at any rate, not attracted. (14) We, therefore, find that the contract sought to be enforced in the suit out of which the present appeal arises is barred as it failed to comply with the conditions mentioned in sub-section (3) (c) of Section 14 the Act. Mr. Das, the learned advocate appearing on behalf of the appellant, strenuously contended before us that his client is not required to comply with the conditions mentioned in sub-section (3) (c) of Section 14 because the case does not come under clauses (a), (c) or (d) of sub-section (1) of Section 14. We are afraid, such contention is not tenable in the eye of law. We are afraid, such contention is not tenable in the eye of law. The placement of the five different instances of the contract mentioned in sub-section (3) of Section 14 itself indicates that those five contracts are not specifically enforceable being hit by subsection (1) and only by way of exception, those have been given special privilege and that too, on fulfilment of further conditions, if any, mentioned therein. Therefore, there is no scope of any argument that a contract of construction of building on a land is not covered by sub-section (1) of Section 14 of the Act; otherwise, there was no occasion of placing such a contract in subsection (3) of the Act as the opening sentence of subsection (3) starts with the phrase "Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1)". (15) Mr. Das next contended that the contract in question cannot be said to be a contract for construction of building on the land in the real sense of the terms because for making such construction of building, his client, the builder, is not getting any amount of money but in lieu thereof, the owner is under obligation to sell a specified area of constructed building to his client. (16) In our opinion, such a contention is equally devoid of any substance. For a valid contract, it is needless to mention, there must be lawful consideration. Such consideration need not necessarily be the payment of money to the builder by the owner of the land; consideration may be of different form and in this case, instead of payment of money, the owner agreed to sell a specified area of the proposed constructed area as a consideration of the contract either to the builder or his nominee. Therefore, simply because, the consideration of the contract is not in terms of money, such fact will not make the contract in question, one different from the contract for construction of building on the land. Unless, the building is constructed, no question of fulfilling the obligation of the owner by selling a specified portion of the constructed building arises. Therefore, simply because, the consideration of the contract is not in terms of money, such fact will not make the contract in question, one different from the contract for construction of building on the land. Unless, the building is constructed, no question of fulfilling the obligation of the owner by selling a specified portion of the constructed building arises. We, therefore, hold that the contract in question is really a contract of construction of building on the land owned by the defendant within the meaning of subsection (3) (c) of the Section 14 of the Act notwithstanding the fact that the consideration behind such contract is not payment of money to the builder. (17) We now propose to deal with the decisions cited by Mr. Das. (18) In the case of M. L. Devender Singh and others vs. Syed Khaja reported in AIR 1973 SC 2457 , the question was whether a clause in the contract providing mere specification of a sum of money to be paid for breach in order to compel the performance of the contract does not by itself remove the strong presumption contemplated by the use of the words "unless and until the contrary is proved"? (19) The said question was answered by the Supreme Court in the following way: "A reference to Section 22 of the old Act, (the corresponding provision is Section 20 of the Act of 1963), would show that the jurisdiction of the Court to decree specific relief is discretionary and must be exercised on sound and reasonable grounds "guided by judicial principles and capable of correction by a Court of appeal". This Jurisdiction cannot be curtailed or taken away by merely fixing a sum even as liquidated damages. We think that this is made perfectly clear by the provisions of Section 20 of the old Act (corresponding to Section 23 of the Act of 1963) so that the Courts has to determine, on the facts and circumstances of each case before it whether specific performance of a contract to convey a property ought to be granted." (20) In the case before us, we are not faced with such a question. Before us, the question is whether a suit for enforcement of a contract for construction of a building on a land owned by the defendant is maintainable in view of the fact that the plaintiff is unable to fulfil the condition (iii) of Section 14(3)(c) of the Act. (21) The said decision is, thus, of no assistance to Mr. Das. (22) The case of Hungerford Investment Trust Ltd. (In voluntary Liquidation) vs. Haridas Mundhra and others reported in AIR 1972 SC 1826 , the Supreme Court held that the Specific Relief Act, 1963, is not an exhaustive enactment and it does not consolidate the whole law on the subject. As the preamble would indicate, the Apex Court proceeded, it is an Act "to define and amend the law relating to certain kinds of specific relief" and it does not purport to lay down the law relating to specific relief in all its ramifications. According to the Supreme Court, although a matter on which the Act defines the law it might generally be exhaustive, the Act as a whole cannot be considered as exhaustive of the whole branch of the law of specific performance. By relying upon the aforesaid proposition of law, Mr. Das tried to convince us that even if the provisions contained in Section 14(3)(c) of the Act apparently stands in the way of his client in getting a decree for specific performance of contract, the Act itself not being exhaustive, there is no bar in granting a decree. There is no dispute with the proposition of law that the Act as a whole cannot be considered to be exhaustive of whole branch of the law of specific performance but as the Court itself pointed out that a matter on which the Act defines the law it should be exhaustive. In other words, if in the Act there is a clear prohibition in granting a decree for specific performance in a given situation, such provision is exhaustive and cannot be made nugatory by contending that the Act is not exhaustive and thus, the Court can ignore such provision. The said decision thus does not help the appellant in anyway. In other words, if in the Act there is a clear prohibition in granting a decree for specific performance in a given situation, such provision is exhaustive and cannot be made nugatory by contending that the Act is not exhaustive and thus, the Court can ignore such provision. The said decision thus does not help the appellant in anyway. (23) In the case of Her Highness Maharani Shantidevi P. Gaikwad vs. Savjibhai Haribhai Patel and others reported in AIR 2001 SC 1462 , an agreement was entered into for purpose of construction of houses on excess vacant land as per scheme sanctioned under Section 21 of Urban Land Ceiling Act for weaker sections. In a suit for specific performance of such contract, the learned Trial Judge decreed the suit. On an appeal by the defendant, the High Court, modifying the decree passed by the Trial Court for specific performance in respect of land in question, directed that the plaintiff should be entitled to enforce the said decree subject to the issue of final declaration under Section 21 of the Urban Land (Ceiling and Regulation) Act, 1976 by the authorities in accordance with law. In other respects, substantially the judgment and decree of the Trial Court was upheld. In an appeal by the defendant before the Supreme Court, it was contended by the appellant that there was clearly an express provision in the agreement giving rights to parties to unilaterally terminate the agreement and that it was terminated by the original defendant No.1 by serving notice dated 23rd February, 1980 on the plaintiff. It was further contended that to such an agreement, clause (c) of Section 14(1) of the Specific Relief Act, 1963 applied and a contract which was in its nature determinable could not be specifically enforced in view of the provision contained in Section 14(1)(c). The learned Advocate for the plaintiff, on the other hand, contended that the contract was not determinable and, therefore, Section 14(1) had no relevance and further, to the agreement in question, the clause (c) of Section 14(3) was applicable and, therefore, notwithstanding clause (c) of Section 14 (1), contract was specifically enforceable. The learned Advocate for the plaintiff, on the other hand, contended that the contract was not determinable and, therefore, Section 14(1) had no relevance and further, to the agreement in question, the clause (c) of Section 14(3) was applicable and, therefore, notwithstanding clause (c) of Section 14 (1), contract was specifically enforceable. It was argued that Section 14(3), inter alia, provided that notwithstanding clause (c) of sub-section (1), the Court might enforce specific performance where the suit was for the enforcement of a contract for the construction of any building or the execution of any work on land. The Supreme Court, however, turned down both the aforesaid contentions of the learned Advocate for the plaintiff and held that a bare reading of clause (c) of Section 14(3) indicated that it had no applicability to the facts of the said case and that the contract in question being determinable in its nature, the learned Courts below erred in law passing a decree for specific performance of contract. The said decision, therefore, cannot in anyway support the contention of Mr. Das. (24) In the case of Faquir Chand Gulati vs. Uppal Agencies Pvt. Ltd. reported in (2008) 10 SCC 245, the following two questions arose for consideration before the Supreme Court: a) Whether, a landowner who enters into an agreement with a builder, for construction of an apartment building and for sharing the constructed area, is a "consumer" within the meaning of Consumer Protection Act, 1986? b) Whether a complaint against a builder is maintainable under the Consumer Protection Act for a prayer seeking delivery of completion certificate and CandD forms issued by the Municipal Corporation in respect of the said building? (25) The Supreme Court answered both the question in affirmative in the facts of the said case and while delivering its verdict, it rejected the contention that the agreement was a joint venture of the parties by making following observations: "What then is the nature of the agreement between the appellant and the first respondent? The appellant is the owner of the land. He wants a new house, but is not able to construct a new house for himself either on account of paucity of funds or lack of expertise or resources. He, therefore, enters into an agreement with the builder. He asks the builder to construct a house and give it to him. The appellant is the owner of the land. He wants a new house, but is not able to construct a new house for himself either on account of paucity of funds or lack of expertise or resources. He, therefore, enters into an agreement with the builder. He asks the builder to construct a house and give it to him. He says that as he does not have the money to pay for the construction and will, therefore, permit the builder to construct and own additional floor(s) as consideration. He also agrees to transfer an undivided share in the land corresponding to the additional floor(s) which falls to the share of the builder. As a result, instead of being the full owner of the land with an old building, he becomes a co-owner of the land with a one-third share in the land and absolute owner of the ground floor of the newly constructed building and agrees that the builder will become the owner of the upper floors with corresponding two-third share in the land. As the cost of the undivided two-third share in the land which the landowner agrees to transfer to the builder, is more than the cost of construction of the ground floor by the builder for the landowner, it is also mutually agreed that the builder will pay the landowner an additional cash consideration of Rs.8 lakhs. The basic underlying purpose of the agreement is the construction of a house or an apartment (ground floor) in accordance with the specifications, by the builder for the owner, the consideration for such construction being the transfer of undivided share in land to the builder and grant of permission to the builder to construct two floors. Such agreement whether called as a "collaboration agreement" or a "joint venture agreement", is not, however, a "joint venture". There is a contract for construction of an apartment or house for the appellant, in accordance with the specifications and in terms of the contract. There is a consideration for such construction, flowing from the landowner to the builder (in the form of sale of an undivided share in the land and permission to construct and own the upper floors). To adjust the value of the extent of land to be transferred, there is also payment of cash consideration by the builder. There is a consideration for such construction, flowing from the landowner to the builder (in the form of sale of an undivided share in the land and permission to construct and own the upper floors). To adjust the value of the extent of land to be transferred, there is also payment of cash consideration by the builder. But the important aspect is the availment of services of the builder by the landowner for a house construction (construction of the owners share of the building) for a consideration. To that extent, the landowner is a consumer, the builder is a service provider and if there is deficiency in service in regard to construction, the dispute raised by the landowner will be a consumer dispute. We may mention that it makes no difference for this purpose whether the collaboration agreement is for construction and delivery of one apartment or one floor to the owner or whether it is for construction and delivery of multiple apartments or more than one floor to the owner. The principle would be the same and the contract will be considered as one for house construction for consideration. The deciding factor is not the number of apartments deliverable to the landowner, but whether the agreement is in the nature of a joint venture or whether the agreement is basically for construction of certain area for the landowner. (Emphasis supplied by us). (26) The aforesaid decision of the Apex Court is, therefore, not relevant for our purpose but at the same time, it supports our view that the contract of this nature is also a contract for making construction of building on the land although the consideration is not payment of money alone. (27) In the case of Pravudayal Agarwal vs. Ram Kumar Agarwal reported in AIR 1956 CAL 41 , the question was if there was an agreement for creation of partnership at will whether the Court should pass a decree for specific performance of such a contract. The question was answered in negative on the ground that the agreement was in nature determinable and thus, the Court should not pass a decree for specific performance of contract being hit by Section 21 (d) of the Specific Relief Act, 1877. The question was answered in negative on the ground that the agreement was in nature determinable and thus, the Court should not pass a decree for specific performance of contract being hit by Section 21 (d) of the Specific Relief Act, 1877. In our opinion, this decision has no relevance to the facts of the present case where the question is whether a contact of construction of building on the land can be enforced by filing a suit for Specific Performance of Contract without complying with all the three clauses of Section 14(3)(c) of the Act. (28) In the case of Carpenters Estate vs. Davies reported in (1939) 1 Ch. D 160, a vendor who sold certain land to the purchaser for building development, retaining other land adjoining it, covenanted to make certain roads and lay certain mains, sewers and drain on the land retained. The covenant having been broken, the purchaser brought an action for specific performance. In such a suit, the vendor took the plea that the action for specific performance was not maintainable because to obtain specific performance of a building contract. The plaintiff has to show that the defendant has by the contract obtained possession of the land on which the work is contracted to be done and in that case the land on which the work was to be done was already belonging to the defendant. Such contention was turned down with the observation that what the plaintiff is required to establish is that the defendant is in possession of the land on which the work is contracted to be done, because, obviously, if the defendant is not in possession of the land, it is impossible for him to carry out the contract and in such a case, the Court will not grant a decree for specific performance of the contract. (29) The aforesaid decision cannot have any application to the facts of this case inasmuch as in that case, the plaintiff, the purchaser from the defendant of the adjoining land, sought enforcement of a contact by which the defendant agreed to make drains etc. (29) The aforesaid decision cannot have any application to the facts of this case inasmuch as in that case, the plaintiff, the purchaser from the defendant of the adjoining land, sought enforcement of a contact by which the defendant agreed to make drains etc. on his own land as part of consideration of sale of the adjoining land to the plaintiff whereas in the case before us, the appellant is required to make the construction but is neither the defendant nor has taken possession in pursuance of the contract as required under Section 14(3)(c) of the Act. We, therefore, find that the decisions cited by Mr. Das are of no avail to his client. Although we find no merit in this appeal, we wanted to give liberty to the plaintiff for amendment of the plaint for the purpose of getting alternative relief by way of return of security of money and damages, if at all suffered, in terms of Section 22 of the Specific Relief Act; but Mr. Das, the learned Advocate appearing on behalf of the appellant after taking instruction from his client submitted before us that his client did not want to avail of such remedy and wanted to challenge our decision by preferring an appeal if we decided to refuse the prayer for specific performance of contract. (30) In view of such submission, we refrain from giving such opportunity to the plaintiff. (31) The appeal is, thus, dismissed. The judgment and decree passed by the learned Trial Judge are affirmed. (32) In the facts and circumstances, there will be, however, no order as to costs.