Judgment : 1. This is plaintiff 's appeal from judgment, order and decree dated 27/8/2002 passed by the learned Additional Civil Judge, Senior Division, Margao (trial Judge) in Special Civil Suit no.55/2001/I. In this appeal, the defendants have filed Cross Objections under Order 41 Rule 22 of the Code of Civil Procedure. 2. The appellant shall hereinafter be referred to as the plaintiff, whereas the respondents shall hereinafter be referred to as the defendants. 3. The said suit was filed by the plaintiff for following reliefs: (A) Direction to the defendants to execute final sale deed in respect of the suit property. (B) For damages suffered by the plaintiff as a result of loss and injury caused, on account of refusal by the defendants to execute the sale deed, keeping in mind the escalation in land prices compared to the prices prevailing at the time of the agreement between the parties and further penalty at the rate of 20% per annum from the date of the agreement till the date of actual payment on the basis of the market value of the land on the date of the decree. (C) Without prejudice to the relief claimed in prayer B , for compensation of Rs. 6,00,000/- for having delayed the finalization of the sale deed in respect of the suit property and further sum which becomes double in every 5 years if the said money is invested in any nationalised bank or any private financial institution. 4. The case of the plaintiff, briefly stated, is as under; The plaintiff and the defendants no.1 and 2 entered into an agreement of sale on 7/01/1984, wherein the said defendants represented to the plaintiff to be absolute owners of the property, having an area of approximately 470 square metres of the property bearing survey no. 107, which is the suit property. The defendants no. 1 and 2, by the said agreement, agreed to sell the suit property, free from any encumbrances, to the plaintiff at the price of Rs. 85/- per square metre. In terms of Clause no.4 of the said agreement, the plaintiff paid Rs.10,000/-(Rupees ten thousand only) as earnest money towards performance of the said agreement and the defendants no.1 and 2, in terms of condition no.5, had undertaken to finalize the sale deed within a period of 12 months. The said agreement was signed and executed before a Notary at Margao. The said agreement was signed and executed before a Notary at Margao. On the expiry of the period of 12 months, the plaintiff wrote a letter dated 4/1/1985 to the defendant no.1 requesting the defendants no.1 and 2 to renew the said agreement, consequent to which another agreement dated 15/1/1995 by ay of renewal was executed with the same conditions as were stipulated in the original agreement. Before expiry of the said renewed agreement, the plaintiff wrote letter dated 11/11/1985 to the defendants no. 1 and 2 asking them to inform in writing within a period of one week regarding the date and particulars of the execution of final sale deed. Another agreement of sale was executed between the said parties on 16/1/1986, since no steps were taken for finalization of the sale deed. Even thereafter, the final sale deed was not executed by the defendants no. 1 and 2 and hence the plaintiff wrote another letter dated 13/12/1986 requesting the defendants no.1 and 2 to cause further renewal and on 14/1/1987 the plaintiff prepared the agreement of sale and signed the same in the office of the notary at Margao, but the defendants no.1 and 2 opted to remain absent. When the plaintiff made several representations and reminders requesting the defendants no.1 and 2 to execute the final sale deed, the defendants no.1 and 2 handed over to the plaintiff certain documents in June 1987, pertaining to the suit property. On perusal of the said documents, the plaintiff noticed for the first time several infirmities and discrepancies regarding title to the suit property and the nature and extent of the proprietary rights of the defendants no.1 and 2. The plaintiff noticed that the defendant no.3 ought to have been impleaded as one of the parties to the said agreements as she was one of the co-owners of the suit property. The plaintiff sent a notice to the defendants no.1 and 2 on 27/7/1987 inter alia bringing the said facts to their notice and requiring them to execute the final sale deed at the earliest. The plaintiff sent a notice to the defendants no.1 and 2 on 27/7/1987 inter alia bringing the said facts to their notice and requiring them to execute the final sale deed at the earliest. Though the plaintiff through her correspondence in writing and by representations made on various occasions had requested the defendants no.1 and 2 to take all steps to execute the final sale deed, the said defendants have been delaying and avoiding to enter into the said final deed, which conduct amounts to willful refusal and neglect to perform their part of the duties under the agreement. The plaintiff is not interested in receiving the earnest money paid by her to the defendants no.1 and 2. The defendants no. 1 and 2 along with Josefa Dias and Veronica Gomes had executed the agreements of sale dated 5/2/1985 and 29/4/1985, pertaining to the plots no. 2 and 8 of the same property, but the final sale deeds in respect of the said plots no.2 and 8 were executed on 20/2/1992 by all the defendants as vendors, acting jointly. The plaintiff discovered this fact for the first time on 5/1/1998. The defendants are, therefore, seen to be operating conjointly under signatures of the defendants nos.1 and 2. The plaintiff has always been ready and willing to perform her part of the contract. Hence, the suit. 5. The defendants, in their pleadings, stated as follows: The defendant no.3 has no privity of contract with the plaintiff and therefore the plaintiff has no cause of action to file the suit against the defendant no.3. The defendant no.3 is the co-owner of the suit property, but is not a party to the said agreement and therefore, the suit is not maintainable against her. The defendant no.3 was not agreeing or consenting to the said agreement executed by defendants no.1 and 2, due to which the defendants no.1 and 2 by their reply dated 31/7/1987, invoked clause 5 of the suit agreement to return the amount of Rs.10,000/- with interest as the execution of the sale deed was impossible. The agreement is unenforceable in law. Since the plaintiff has chosen not to receive the said amount of Rs.10,000/-with interest offered by the defendants no.1 and 2, the plaintiff is not entitled to any reliefs. The agreement is unenforceable in law. Since the plaintiff has chosen not to receive the said amount of Rs.10,000/-with interest offered by the defendants no.1 and 2, the plaintiff is not entitled to any reliefs. The plaintiff was very well aware that the defendants no.1 and 2 were only the co-owners of the suit plot, inspite of which, they entered into the said agreement for sale. Even the documents of title were perused by the plaintiff before the execution of the agreements. The defendants no.3 and 5 have never consented nor authorized their respective spouses to enter into the said agreement for sale and therefore, there is no privity of contract between them and the plaintiff. The suit is barred by the law of limitation. 6. The plaintiff examined herself before the trial Judge as PW.1 and one witness by name Peter Loyola Antao, a Civil Engineer, as PW.2, The defendants examined one of the legal representatives of the deceased defendant, namely Raghoba Shirodkar, as DW1 and one Shri Ubaldino Oliveira as DW.2. 7. Upon assessment of the entire evidence on record, the learned trial Judge held that the plaintiff was always ready and willing to perform her part of the contract. The trial Judge held that there was no privity of contract between the plaintiff and defendant no.3 and the suit agreements are unenforceable since the defendant no.3 was not a party to them. The learned trial Judge held that the plaintiff is entitled to refund of the earnest money of Rs.10,000/- plus further compensation/damages of Rs.50,000/-, both along with interest at the rate of 10% per annum from the date of the filing of the suit till the date of realization. The suit was, therefore accordingly decreed partly. The plaintiff is aggrieved by the impugned judgment and decree. 8. Learned Advocate Shri V.A. Lawande argued on behalf of the plaintiff. None remained present on behalf of the defendants. 9. Shri Lawande, the Learned Advocate, argued that in terms of Article 1189 of the Portuguese Civil Code, applicable to the State of Goa, the management of the properties is always with the husband and in terms of Paragraph 1 to Article 1191 of the Portuguese Civil Code, the Court can compel a wife to execute the sale deed. 9. Shri Lawande, the Learned Advocate, argued that in terms of Article 1189 of the Portuguese Civil Code, applicable to the State of Goa, the management of the properties is always with the husband and in terms of Paragraph 1 to Article 1191 of the Portuguese Civil Code, the Court can compel a wife to execute the sale deed. He contended that the spouses of the defendants no.1 and 2, who were not parties to the agreements for sale, have otherwise not challenged the said agreements. He pointed out that under Clause 6 of the agreement of sale, the purchaser, that is the plaintiff, was required to pay the balance amount in full at the time of effecting the sale, if the vendors concluded all the other required formalities under the prevailing laws. He, therefore, argued that the defendants no.1 and 2 could have taken consent of the other defendants. Learned Advocate Lawande also relied upon Section 13(b) of the Specific Relief Act. Assailing the impugned judgment, learned Advocate Lawande argued that the case of “Harnam Singh and others” relied upon by the trial Judge was not at all applicable, in view of Article 1191 of the Portuguese Civil Code and Section 13(b) of the Specific Relief Act. He also pointed out from the impugned judgment that the trial judge has condemned the defendants every time but at last has gone for compensation though the plaintiff had prayed for the relief of execution of the sale deed. In the alternative, the contention of Shri Lawande was that if specific performance was impossible than a reasonable amount as compensation had to be awarded. According to Shri Lawande, the amount of Rs.50,000/- is meagre and a reasonable amount of at least Rs. 3 to 4 lakhs ought to have been granted. As far as the cross objections filed by the defendants, he argued that the same are liable to be dismissed for default and even otherwise, in view of the arguments advanced by him, the same are also liable to be dismissed on merits. 10. In support of his contentions, the learned counsel for the plaintiff, has relied upon the following judgments: (a) “Motilal Jain Vs. Ramdasi Devi & Ors” [ 2000 (4) AllMR 285 ]. (b) “Surinder Singh Vs. Kapoor Singh (dead) through L.Rs. & Ors.” [2005 (5) AllMR (SC) 816] (c) “A. Abdul Rashid Khan (dead) & Ors. Vs. 10. In support of his contentions, the learned counsel for the plaintiff, has relied upon the following judgments: (a) “Motilal Jain Vs. Ramdasi Devi & Ors” [ 2000 (4) AllMR 285 ]. (b) “Surinder Singh Vs. Kapoor Singh (dead) through L.Rs. & Ors.” [2005 (5) AllMR (SC) 816] (c) “A. Abdul Rashid Khan (dead) & Ors. Vs. P.A.K.A Shahul Hamid & Ors.” [2001 (3) AllMR 770] (d) “Smt. Jaywantabai Hansraj Gajbhjiye Vs. Raghunath Kisan Lanjewar” [ 2006 (2) AllMR 671 ] (e) “P. C. Varghese Vs. Devaki Amma Balambika Devi & Ors” [2006 (2) AllMR (SC) 111] (f) “Chandrabhan Lakhaji Dehankar (since deceased) through LRs. Vs. Ganeshrao s/o Kashirao Ganjre & Ors.” [2005 (4) AllMR 903]. (g) “Grasim Industries Ltd. and anr. Vs. Agarwal Steel” [ (2010) 1 SCC 83 ]. (h) “Kumar Dhirendra Mullick and ors. Vs. Tivoli Park Apartments (P) Ltd.” [ (2005) 9 SCC 262 ] (i) “S.V. R Mudaliar (dead) by LRs. and others Vs. Mrs. Rajabu F. Buhari (dead) by LRs. and ors.” [ (1995) 4 SCC 15 ]. (j) “Deenath Vs. Chunnilal” [(1975) O AIR (Raj) 69]. (k) “Mrs. Chandnee Widya Vati Madden Vs. Dr. C. L. Katial and ors.” [ (1964) 2 SCR 495 ]. 11. Perused the entire record and proceedings. 12. The main point that arises for determination is whether the agreements (Exhibits PW.1/A, PW.1/C and PW.1/E) between the plaintiff and the defendants no. 1 and 2 are enforceable, as against the defendants no. 4 and 5. 13. Article 1189 of the Portuguese Civil Code provides that the management of all the properties of the conjugal society belongs to the husband and it belongs to the wife only in case of absence or impediment of the former. Article 1191 of the said Code provides that the husband is not permitted, without the consent of his wife, either to alienate immoveable properties or to move the Court in respect of disputes regarding ownership or possession of immoveable properties. Paragraph 1 to this Article provides that such consent may be made good judicially when the wife refuses to give it without just cause, or when she is unable to give it. The above provisions are applicable in respect of the properties belonging to the conjugal society. In the present case, the defendants no. 4 and 5 are not from the conjugal society of the defendants no. 1 and 2. The defendant no. The above provisions are applicable in respect of the properties belonging to the conjugal society. In the present case, the defendants no. 4 and 5 are not from the conjugal society of the defendants no. 1 and 2. The defendant no. 4, who is a co-owner of the suit plot bearing no. 11, is the wife of the defendant no. 5. Therefore, the provisions of Articles 1189 and 1191 of the Portuguese Civil Code cannot come into play, in so far as the defendants no. 4 and 5 are concerned. 14. Section 13(1)(b) of the Specific Relief Act, 1963 provides as under: “(1) where a person contracts to sell or let certain immoveable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:- (a) …........... (b) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance.” In the present case there is no reason for the defendants no. 4 and 5 to be bound to concur at the request of the plaintiff or at the request of the defendants no. 1 and 2. Hence, the above provision also cannot help the plaintiff. 15. Admittedly, the defendants no 4 and 5, who are co-owners of the plot no 11, have not signed the agreements dated 17/1/1984; 15/1/1985; and 16/1/1986 (Exhibits PW.1/A, PW.1/C and PW.1/E). These agreements are signed only by the plaintiff and the defendants no 1 and 2. The said agreements were also not signed by the children of the defendant no. 1. There is absolutely no evidence on record to establish that the defendant no. 4 had consented to the execution of any of the said agreements. PW.1 has stated, in his cross-examination, that even after the execution of the said agreement, the defendant no. 4 did not agree in any manner to execute the sale deed in respect of the suit plot. PW. 4 had consented to the execution of any of the said agreements. PW.1 has stated, in his cross-examination, that even after the execution of the said agreement, the defendant no. 4 did not agree in any manner to execute the sale deed in respect of the suit plot. PW. 1 has produced on record an agreement of sale dated 29/4/1985 (Exhibit PW.1/H), executed only by the defendants no. 1 and 2 with one Veronica Gomes in respect of plot no. 8 of the same property and the final sale deed dated 13/12/1991 (Exhibit PW.1/I), executed by the original defendant no. 1, his wife and the defendants no. 2 to 5 (all the co-owners) in favour of said Veronica Gomes. She has produced another agreement for sale dated 5/2/1985 (Exhibit PW.1/J), executed only by the defendants no. 1 and 2 in favour of one Josefa Dias, in respect of plot no. 2 from the same property and subsequent sale deed dated 13/12/1991 (Exhibit PW.1/K), executed by all the co-owners in favour of said Josefa Dias. From the above transactions, what is material is that the sale deeds have been executed by all the co-owners of the property. The execution of those sale deeds cannot compel the defendants no. 4 and 5 to execute sale deed in favour of the plaintiff, in respect of plot no. 11. We do not know the reason as to why the defendants executed the said sale deeds at Exhibits PW.1/I and PW.1/K, though they had not signed the agreements at Exhibits PW.1/H and PW.1/J. As has been rightly held by the learned trial judge, the plaintiff cannot get any benefit out of those transactions as they are totally different transactions and have no connection with the transaction regarding plot no. 11. The learned trial judge has relied upon “Harnam Singh and others Vs Smt. Purbi Devi and others” (AIR 2000 Himachal Pradesh, 108), wherein it has been held that the doctrine of privity of contract implies a mutuality at Will and is interaction of parties and their successors. The learned Counsel for the plaintiff is wrong in alleging that the above citation is not applicable to the present case. Clause no. The learned Counsel for the plaintiff is wrong in alleging that the above citation is not applicable to the present case. Clause no. 6 of the said agreements, inter alia, provides that the purchaser shall pay the balance amount in full at the time of effecting the sale, which can be even earlier than the above specified deadline, if the vendors conclude all other required formalities under the prevailing laws. Under the above clause, the defendants no. 1 and 2 cannot force the defendants no 4 and 5 to sign the sale deed. The agreements executed only by the defendants no. 1 and 2, therefore, are not enforceable as against the defendants no. 4 and 5. 16. The next question is whether specific performance of the contract can be ordered in respect of the share of the defendants no. 1 and 2 and their spouses, only. In the case of “Surinder Singh” (supra), the Appellant had entered into agreement for sale of land owned in equal shares by him and his sister after the death of their father, and the representation that he had authority to enter into agreement by his sister was found to be false. It was held in the circumstances that equity lies in favour of granting specific performance of agreement for sale in respect of the share of the appellant rather than refusing the same. In the case supra, the respondents, by way of amendment, had sought to substitute the original prayer by a prayer for a decree qua the share of the appellant only. In the present case, there is no such a prayer to grant decree only to the extent of the shares of the defendants no. 1 and 2. Besides the above, the shares of the defendants no. 1, 2, and 4 in the property are not known. Hence the above citation is not applicable. For the same reasons, the judgment in the case of “A. Abdul Rashid Khan” (supra) is not applicable to the present case. In the case of “Smt. Jaywantabai Gajbhiye” (supra), the defendant had agreed to sell the suit property but in the suit filed for specific performance of the contract by the plaintiff, he contended that the suit property was ancestral and jointly owned by his wife and son and so he could not sell the same. In the case of “Smt. Jaywantabai Gajbhiye” (supra), the defendant had agreed to sell the suit property but in the suit filed for specific performance of the contract by the plaintiff, he contended that the suit property was ancestral and jointly owned by his wife and son and so he could not sell the same. It was held that the defendant being “karta” of the family could alienate the same. In the present case the defendants no. 1 and 2 are not “karta” of the family in so far as the defendants no 4 and 5 are concerned. Hence they cannot alienate the property. In the State of Goa, Article 2177 of the Portuguese Civil Code is still in force and it provides that a co-owner cannot dispose of specifically any portion of the common property without the same being assigned or allotted in partition to him. This position has been confirmed in the case of “Jose Antonio Philip Pascoal da Piedade Cirilo dos Milagres Miranda and anr. Vs Joao Luis Laurente dos Milagres Miranda and ors.” [1999 (1) Goa L. T. 77]. Hence, the question of granting the specific performance of the agreement, in respect of the shares of the defendants no. 1 and 2 along with their spouses, does not arise. Various Judgments relied upon by the learned Counsel for the plaintiff, on the point of granting of specific performance only with regard to the shares of the parties to the agreement, do not apply to the present case. 17. The next question is whether the trial judge could order refund of the earnest money of Rs. 10.000/- along with interest at the rate of 10% per annum, though there was no specific prayer, for the same, in the suit. The defendants, in their cross objections have raised this point. There is no dispute that the plaintiff had paid a sum of Rs. 10,000/- to the defendants no. 1 and 2 as earnest money. Clause no. 5 of the agreement provides that the vendors undertake to finalize the sale deed within a period of twelve months failing which the vendors are liable to compensate the purchaser by returning the earnest money with added interest at the rate of twenty per cent per annum. The evidence on record duly proves that the plaintiff was always ready and willing to perform his part of the contract. The defendants no. The evidence on record duly proves that the plaintiff was always ready and willing to perform his part of the contract. The defendants no. 1, 2 and 3 in paragraph 3 of their written statement have averred that the defendants no. 1 and 2 had invoked clause no. 5 and had agreed to return the amount of Rs. 10,000/- to the plaintiff, with interest, as the sale deed was impossible to be executed. Merely because there was no specific prayer in the plaint for refund of earnest money, it does not mean that the trial judge could not have awarded the same. The plaintiff, in the suit had, inter alia, prayed for any other relief as the Court may think fit and proper including damages and compensation. The Contract Act does not make any special provision for recovery of the earnest money paid on failure of the other party to perform its part of the contract. The recovery of the earnest money can be made under section 73 of the Contract Act, as loss or damage caused by the person who has broken the contract. The learned trial judge was therefore justified in ordering the refund of the earnest money along with interest. 18. The last question is whether the plaintiff has proved that she is entitled to receive the compensation of Rs. 6,00, 000/-. The plaintiff appears to have claimed this amount on the ground of delay in execution of the sale deed and escalation in the cost of construction of a bungalow which she intended to construct for her residence. However, the plaintiff has not produced on record any evidence regarding the nature of the bungalow which she intended to construct and about the expenditure which she would have incurred. As has been rightly observed by the learned trial judge, in determining the amount of compensation, the principles specified in Section 73 of the Contract Act shall have to be considered and said Section 73 expressly provides that such compensation is not to be given for any remote and indirect loss or damage. The plaintiff has failed to prove the actual damage or loss suffered by her on account of the breach of contract by the defendants, excluding the defendants no. 4 and 5. The defendants no. 1 and 2 knew that the participation of the defendants no. 4 and 5 was necessary in the said agreements. The plaintiff has failed to prove the actual damage or loss suffered by her on account of the breach of contract by the defendants, excluding the defendants no. 4 and 5. The defendants no. 1 and 2 knew that the participation of the defendants no. 4 and 5 was necessary in the said agreements. But they did not disclose to the plaintiff that the said defendants no. 4 and 5 were also the co-owners of the said plot sought to be sold. The plaintiff can be said to be entitled to receive from the said defendants, by way of compensation, the amount, by which the price of the land in the same locality, at the time of breach of contract, exceeds that which is mentioned in the agreements. There being no evidence on record regarding escalation in price of the land, nominal compensation on account of the hardship, wastage of time, energy, mental sufferance, etc., is bound to be awarded. The learned trial judge has relied upon “K. Narendra Vs Riviera Apts. P. Ltd.”(AIR 1999 SC 772), wherein the Apex Court has held that to some extent the assessment of quantum of compensation is a matter of guess work when there is no evidence about the extent of the escalation of the prices. Hence, though the plaintiff has not proved that she is entitled to the amount of Rs. 6,00,000/- as compensation, however, in addition to the amount of Rs. 10,000/-, which was paid by the plaintiff to the defendants no. 1 and 2, as earnest money, a further amount of Rs. 50,000/- awarded by the learned trial judge, as general damages, is just and reasonable. The defendants no. 4 and 5 cannot be made liable to pay any amount to the plaintiff. It is only the defendants no. 1(A) to 1(F), 2 and 3 who are jointly and severally liable to pay the compensation to the plaintiff, as has been rightly held by the learned trial judge. 19. In view of the above, there is no need to discuss the principles laid down in various other citations, relied upon by the learned Counsel for the plaintiff and mentioned in paragraph 10 above. 20. The impugned judgment and decree is in accordance with the settled principles of law based on the correct appreciation of the evidence on record. No interference with the same is warranted. 21. 20. The impugned judgment and decree is in accordance with the settled principles of law based on the correct appreciation of the evidence on record. No interference with the same is warranted. 21. In the result, the appeal as well as cross objections are dismissed. Parties to bear their own costs.