LexMUKUL SHARMA versus ORION INDIA (P) LTD. THROUGH ITS MANAGING DIRECTOR
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A B c D E F G H [2016] 2 S.C.R. 666 MUKUL SHARMA v. ORION INDIA (P) LTD. THROUGH ITS MANAGING DIRECTOR (Civil Appeal No. 4997 of2016) MAY 10,2016 [KURIAN JOSEPH AND ROHINTON FALi NARIMAN, JJ.) Specific performance: Suit for specific performance of agreement - As per the agreement, certain proportion of built-up area was liable to be handed over to the plaintiff-appellant - Dispute as to what is the built-up area - Appellant sent a letter stating that built up area was understood to include the common area - Defendant agreed to the definition of built up area as given by plaintiff in order to resolve the matter - This was followed by another letter by defendant· wherein· they stated that all common area were excluded as suggested by the plaintiff - Trial court decreed the suit - However, High Court set aside the decision of the trial court - On appeal, held: It was defendant who changed his stand and accepted the position as raised by plaintiff - Thereafter and therefore, under the spirit of s.5 of the Contract Act, defendant cannot resile from the mutually agreed position. Allowing the appeal, the Court HELD: 1. It is not a case where the plaintiff resilea from the agreement. It is a case where the defendant himself subsequently accepted the dispute raised by the plaintiff with regard to the concept of 'built-up area'. In express terms, the respondent- defendant has subsequently agreed that the built-up area will not include the common area like lift well, corridor, lobby, duct, etc. Admittedly, the expression "built up area" is not defined in the sale deed. It is something to. be deciphered from the conduct of the parties. No doubt, the appellant plaintiff had, after five years of the sale deed, as per letter understood the built up area as including common area. But subsequently, he disputed the position and it was the respondent-defendant who accepted and agreed to the position that built up area does not include common area. It is not as if an attempt is made for interpreting the express 666 MUKUL SHARMA v. ORION INDIA (P) LTD. THROUGH ITS MANAGING DIRECTOR terms of an agreement, by subsequent condnct. It is a sitnation where there is a dispnte on a concept relating to an expression/ concept which is not explained in the agreement. The plaintiff had initially understood the concept in a particular angle or manner . . Bnt that does not prevent him from raising a dispute. And on raising such a dispnte, nothing prevented the defendant from insisting the plaintiff to stick to his original stand. On the contrary, it is the defendant who changed his stand and accepted the position as raised by the plaintiff. Thereafter and therefor, under the true spirit of section 5 of the Contract Act, defendant cannot resile from the mutually agreed position; [Para 9] (670-C-G] Abdulla Ahmed vs. Animendra Kissen Mitter AIR 1950 SC 15:1950 SCR 30; Godhra Electricity Co. Ltd & Am: vs. The State of Gujarat & Anr. AIR 1975 SC 32:1975 (2) SCR 42 - referred to. Case Law Reference 1950 SCR 30 referred to Para 10 1975 (2) SCR 42 referred to Para 10 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4997 of 2016. 667 A B c D From the Judgment and Order dated 01.09.2015 of the High Court, E at Guwahati,.in RFA No. 38 of2006. Shyam Divan, Sr. Adv., P. V. Yogeswaran for the Appellant. Avijit Bhattacharjee, Ms. Upma Shrivastava for the Responden.t. The following Order of the Court was delivered ORDER I. Leave. granted. 2. The appellant filed Title Suit No.195 of 1998 before the Civil Judge (Senior Division) No. I at Guwahati praying for specific performance of the instrument dated 25.8.1992 between the appellant and the respondent. 3. The dispute is only on a narrow compass. As per paragraph (1 L of the aforesaid agreement, half of the built up area on the ground floor of the proposed North Block of the complex as per the drawingNo.GBA/ 891/03Adated 14.12.1990 and half of the built up area on the mei:zanine F G H' 668 A B SUPREME COURT REPORTS [2016] 2 S.C.R. floor of the same building and complete built up area on the first floor in the same building, were liable to be handed over to the appellant. On a dispute as to what is the built up area, the appellant filed the civil suit. The suit was decreed. Aggrieved by the same, the respondent-defendant filed first appeal before the High Court. The following points for determination were found to arise
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