SURJIT KAUR versus NAURATA SINGH AND ANR.

Citation: [2000] SUPP. 3 S.C.R. 259 · Decided: 13-09-2000 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Disposed off

Judgment (excerpt)

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SURJIT KAUR 
A 
v. 
NAURATA SINGH AND ANR. 
SEPTEMBER 13, 2000 
[V.N. KHARE AND S.N. VARIAVA, JJ.] 
B 
Specific Relief Act, 1963-Section 12 (3)-Specific performance of 
contract-Agreement for sale could not be executed as alienation was 
restrained by order of Court-Trial Court ordered refund of advance paid 
along with compensation-Appeal filed before High Court for enhancement C 
of compensation was allowed, wherein it was stated for the first time that 
execution was possible without delivery of possession-Second Appeal filed 
against the order to execute the agreement was dismissed-On appeal held, 
where contract is incapable of being performed in whole and a party 
categorically refused to accept part-performance then there is no readiness D 
and willingness at all stages to accept part-performance-Such party cannot 
be permitted later to change its position and elect to accept part-
performance-It is mandatory that the party seeking part-performance must 
unambiguously relinquish all claims to performance of remaining part of the 
contract and pay the full consideration-Decree passed by Trial Court upheld, 
however compensation was enhanced as per terms of the agreement. 
E 
Appellant entered into an agreement to sell her land to Respondent No. 
1 and received Rs. 20,000 as advance. She was supposed to get some mutation 
formalities completed and deliver possession before the agreed date of 
execution of sale deed. Meanwhile, Respondent No.2 disputed her title and F 
obtained an interim order preventing alienation of the land. 
Both parties appeared before the Registrar. Respondent No. 1 insisted 
on delivery of possession for execution of the sale deed. Appellant conveyed 
her inability owing to the interim order restraining alienation. Appellant 
however was willing to execute sale deed if delivery of possession was not G 
insisted upon. Respondent refused to accept part performance. A suit was 
filed by him praying for either specific performance of the agreement in 
compliance of all the terms or payment of Rs. 40,000 as compensation, which 
was mentioned in the agreement. Trial Court ordered refund of the advance 
Rs. 20,000 along with Rs. 8800 as compensation since specific performance H 
259 
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260 
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R. 
A was impossible. 
B 
Respondent No. l filed an appeal and stated therein for the first time 
that he was ready to execute the sale deed without delivery of possession. The 
appeal was allowed. The appellant preferred second appeal, which was 
dismissed by the High Court. Hence this appeal. 
Respondents contended that a party can elect to accept part performance 
at any stage of litigation; that mere filing of a suit for specific performance 
of the agreement and not averring that the party was willing to accept 
performance in part does not preclude a party from subsequently electing to 
C accept performance in part; and that such election can be made even at the 
stage of appeal. 
Disposing of the appeal, the Court 
HELD: 1. In cases of part performance of contracts once an election 
D is made then that party canno_t at a later date resile or get out of the election. 
Once 1st Respondent elected not to accept part performance it was no longer 
open to him, on finding that he could not get the specific performance of the 
whole, to claim part performance at a later date. If this was to be permitted 
then all vendees would not pay the consideration amount on the elates fixed 
for performance. Whilst such dates may not be the essence of the contract, 
E they still have some meaning. If this was to be permitted then vendees would 
withhold payments by first refusing to accept part performance and then 
after yeare of litigation agree to accept part performance at the appellate 
' stage. If this was to be permitted then the sellers would be kept out of their 
money for long periods of time by vendees. [268-A-C] 
F 
Kalyanpur Lime Works Ltd. v. State of Bihar & Anr., [1954) SCR 958; 
Dr. Jiwan Lal & Ors. v. Brij Mohan Mehra & Anr., [1972) 2 SCC 757; Ram 
Niwas v. Smt. Omkari & Anr., AIR (1983) All. 310; Smt. T.K. Santha & Ors. 
v. Smt. A.G. Rathnam & Ors., AIR (1990) Ker. 69; Ramani Ammal v. 
Susilammal, AIR (1991) Mad. 163 and Smt. Purnima Rani Dutta v. Smt. 
G Lakshmi Bala Dasi, AIR (1988) Cal. 148, distinguished. 
2. Merely because in correspondence or orally a party has insisted on 
performance of the whole contract will not preclude that party from 

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