SHAMSU SUHARA BEEVI versus G. ALEX AND ANR.

Citation: [2004] SUPP. 3 S.C.R. 653 · Decided: 20-08-2004 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Disposed off

Judgment (excerpt)

SHAMSU SUHARA BEEVI 
V. 
G. ALEX AND ANR. 
AUGUST 20, 2004 
[ASHOK BHAN AND S.H. KAPADIA, JJ.) 
Specific Relief Act, 1963; Ss. 21 and 28(3)/Jndian Contract Act, 
1872: 
Agreement of sale of land-Vendorjailed to execute within time 
period prescribed-Suit for specific performance filed by Vendee-Decreed 
by Trial Court-Balance of the sale consideration deposited by Vendee in 
the Court-Interim applications for grant of interest on the amount and 
A 
B 
c 
to measure the land before registration of sale deed allowed by trial 
Court-Affirmed by High Court-On appeal, Held : Though Courts have D 
discretionary powers to award damages without any pleading to that effect, 
they cannot overlook the question of hardship caused to opposite party--
Jn no case should compensation be decreed unless it is claimed since it 
is mandatory requirement under Section 21 of the Act-Vendee has neither 
claimed compensation in the original petition nor claimed it by seeking E 
amendment at any stage of the proceedings-High Court erred in granting 
compensation without any prayer to that effect-However, Vendee could 
withdraw the amount deposited in excess of the cost but it cannot be treated 
as compensation-Vendor could also withdraw the balance amount with 
interest thereon. 
Appellant-Vendor entered into an agreement of sale of land with 
the respondent-Vendee and made payment of earnest money towards 
F 
the sale consideration. Since Vendor fialed to execute the sale deed, 
Vendees filed a suit for specific performance of the agreement. Trial G 
Court decreed the suit directing the Vendee to deposit balance of the· 
sale consideration in the Court and also directed the Vendor to cause 
registration of the sale deed within the specified time period. In 
compliance thereof, Vendee deposited the amount, which was kept in 
a Nationalized Bank. 
H 
653 
654 
SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R. 
A 
In the meantime, Vendees filed Interim Applications seeking 
permission to measure the suit property, to obtain no objection 
certificate from Income Tax Office and also for claiming interest @ 
12% on the amount so deposited by them from the date of deposit till 
registration of the sale deed. Trial Court allowed both the I.As. 
B Aggrieved, Vendor filed a Revision petition, which was dismissed by 
the High Court holding that respondent-Vendees were entitled to get 
compensation as per provisions of Section 21 of the Specific Relief Act. 
Hence the present appeal. 
C 
It was contended for the appellant-Vendor that since the 
respondent-Vendees had failed to claim compensation either in the 
original plaint or by amendment it at any stage during its pendency 
in terms of Section 21(5) of the Act, the respondents were not entitled 
I 
to any compensation for breach of agreement of sale even if there was 
D a breach. 
Disposing of the appeal, the Court 
.HELD : 1.1. While it is proper that the Court should have full 
discretion to award damages in any case it thinks fit, one cannot, on 
E the other hand, overlook the question of unfairness and hardship to 
the defendant, if a decree is passed against him without proper 
pleading. The Law Commisshm has also recommended that in no case 
should compensation be decreed unless it is tlaimed by a proper 
pleading. However, it should be open to the plaintiff to have an 
F amendment, at any stage of the proceeding, in order to introduce a 
prayer for compensation, whether in lieu of or in addition to specific 
performanee. Legislature accepted the suggestions made by the law 
Commission of India and accepted the view expressed by the High 
Court of Madras in the case of Somasundaram v. Chidambaram* to that 
G effect; sub-sections ( 4) and (5) of Section 21 of the Specific Relief Act 
resolve certain divergence of opinion in the High Courts on the aspect 
of jurisdiction with regard to award of compensation. (662-E-F-G-H) 
*Somasundaram v. Chidambaram, AIR (1951) Mad. 282, referred 
H to. 
SHAMSU SUHARA BEEVI v. G. ALEX 
655 
9th Report of Law Commission, (1958) pp. 18-19, referred to. 
A 
1.2. In the instant case, the respondents did not claim 
compensation for the breach of agreement of sale either in addition to 
or in substitution of the performance of the agreement in the original 
plaint, nor did they amend the plaint. Sub-section (5) of Section 21 of B 
the Act emphatically provides that no compensation shall be awarded 
unless the rclieffor compensation has been claimed either in the plaint 

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