KAMAL KANT JAIN versus SURINDER SINGH (D) THR. LRS.

Citation: [2017] 10 S.C.R. 1128 · Decided: 27-10-2017 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Appeal(s) allowed
cites 3 · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

A 
B 
[2017] 10 S.C.R. 1128 
KAMAL KANT JAIN 
v. 
SURINDER SINGH (D) THR. LRS. 
(CivilAppea!No.17321 of2017) 
OCTOBER 27, 2017 
[R. F. NARIMAN AND SANJAY KISHAN KAUL, JJ.] 
Specific Relief Act, 1963 - s.23 - Liquidation of damages not 
a bar to specific performance - Respondent authorised one 'H' to 
C 
sell the property in question by way of an authorisation letter -
Accordingly, agreement to sell entered into between the appellmit-
buyer and respondent-seller, in terms whereof earnest money was 
paid by appellant - Refusal by respondent to perform his part of 
the agreement - Suit.for specific performance filed by appellant, 
dismissed by Trial court - Appeal filed by appellant was dismissed 
D - Second appeal filed by appellant, dismissed by before High Court 
holding that s.23 barred the specific performance in the facts of 
the case - On appeal, held: Mere naming of i:1 certain amounrwhich 
may sound in damages is not good by itself to non-suit a person 
seeking specific performance unless it is clear that the said sum 
E was nmned in lieu of specific performance - In the instant case, 
refund of earnest money with an equal amount as penalty was only 
. to secure the performance of the contract and cannot be stated to 
be a sum in lieu of specific performance of the contract - Mere 
omission of a statement in the agreement to sell that specific 
performance ought to be allowed would be of no consequence -
F 
Impugned judgment is set aside - Specific performance of the 
agreement to sell is ordered - Vacant possession of the property in 
question to be handed over to the appellant as soon cis Rs.JO crore.1· 
is paid by the appellant to the respondent - Specific Relief Act, 
. 1877 - s.20. 
. 
· 
G 
Allowing the appeal, the Court 
H 
HELD: 1.1 The legislature, in the new Section 23, Specific 
Relief Act, 1963 explicitly provided that the mere naming of a 
certain amount which may sound in damages is not good enough 
by itself to non-suit a person seeking specific performance unless 
1128 
KAMAL KANT JAIN v. SURINDER SINGH (D) THR. LRS. 
1129 
it is clear on the facts that the said sum was named in lieu of A 
specific performance; This is normally explicitly spelled out in 
the agreement itself. [Para 9) [1133-B] 
1.2 Further, paragraph 6 of the agreement to sell referred 
to paragraph 6 of the authorisation letter and made it clear that 
the refund of the amount of earnest money with an equal amount B 
as penalty was only to secure the performance of -the contract -
and cannot be stated to be a sum in lieu of specific performance. 
The mere omission of a statement in the agreement to sell that 
specific performance ought to be allowed would, therefore, be of 
no consequence. It is clear that in both para 6 of the. authorisation C 
letter (which explicitly referred to specific performance) and para. 
6 of the agreement to sell (which omitted reference to specific 
performance) earnest money with equal amount as penalty/ 
damages remained the same, making. it clear that there was .no 
-change in the position that this amount was only to secure 
performance of th_!! contract, and is not in lieu of specific D 
performance. [Para 15) [1140-B-D] 
- · 
Dadarao and Am: v. Ramrao & Ors. (1999) 8 SCC 416 
: [1999) 4 Suppl. SCR 356 - distinguished. 
Man Kaur (Dead) by Lrs. v. Hartar Singh Sangha 
(2010) 10 sec 512: [2010) 12 SCR 515; M.L. 
E 
Devender Singh and Others v. Syed Khaja (1973) 2 
SCC 515 : [1974) 1 SCR 312 - relied on. 
P. D 'Souza v. Sho11drilo Naidu (2004) 6 SCC 649: 
[2004) 3 Suppl. SCR186; P. S. Ranakl'ishna Reddy- v. 
M. K. Bhagyalakshmi and Am: (2007) 10 SCC _231: 
[2007) 2 SCR 876 - referred to. 
F 
1130 
SUPREME COURT REPORTS 
[2017] lO S.C.R. 
A 
CIVIL APPELLATE JURISDICTION : Civil Appeal No.17321 
B 
of2017. 
From the final Judgment and Order dated 29.04.2008 passed by 
the High Court of Punjab and Haryana at Chandigarh in RSA No.1178 
of 1996. 
V.K. Jhanjhi, Sr. Adv., Ms. Jyoti Mendiratta, Aastik, Ad vs. for the 
Appellant. 
Jayant Kumar Mehta, Shaurya Kuthiala, Sunil Fernandes, Nisheeth 
Bhatt, Ms. Astha Shanna. Advs. for the Respondents. 
C 
The Judgment of the Court was delivered by 
R. F. NARIMAN, J. 1. Leave granted. 
2. The facts of the present case show that there was an 
authorisation letter dated 08.03.1978 of the respondent to a certain power 
of attorney holder namely, Harnam Singh, to sell the property in question. 
D Paragraph 6 of this authorisation Jetter reads as foJlows: 
"Purchaser s
Excerpt shown. Read the full judgment & AI analysis in Lexace.