Defence Respecting Suits for Relief Based on Contract – Section 9 | Specific Relief Act

Section 9 of the Specific Relief Act, 1963 Provides that:

1. Allowability of:

In absence any stipulation that time is essence of agreement of absence of any plea in written statement that time is essence of agreement and also in absence of any issue on this point the new plea by defendant on this point was not to be allowed.

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2. Contract for sale:

Cause of action for suit for specific performance of contract for sale starts from last notice asking owner to execute sale- deed. Suit filed within a year was within limitation.

3. Enforcement of:

The appellant herein as plaintiff filed Civil Suit, averring, inter alia, that she had entered into an agreement with the respondent (defendant) for purchase of property, for a consideration of Rs. 50.000/- and also had paid to the defendant an earnest money of Rs. 5,000/-; that the property was jointly owned by the defendant with her step mother-in-law who would also join the execution of the sale-deed; that if mother-in-law failed to do so the respondent (defendant) would sell her half share of the property for half of the sale price.

It is settled law that if a contract is to be made, the intention of the offence to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer.

The rule is that the acceptance must be absolute, and must correspond with the terms of the offer. If the two minds were not ad idem in respect of the property to be sold, it cannot be said that there was a contract for specific performance. If the parties themselves were not ad idem as to the subject-matter of the contract the Court cannot order specific performance.

Applying the principle to the instant case, it be construed that there was not one obligation to be performed in alternative ways but one obliga­tion to be performed in one way unless the promisor chose to substitute another way? In other words, the primary obligation being impossible was the promisor bound to exercise the option for the benefit of the other party? It would be reasonable to construe that if mother-in-law failed to sign the sale-deed then the promisor would either execute the sale-deed in respect of her share, or in the alternative, pay back the advance and compensation in the same amount, and the buyer would have to take the advance.

Mother- in-law having refused to sell her share, the first alternative became impos­sible. The question then was whether the second alternative would auto­matically follow or option was reserved by the vendor either to sell her own share or to pay back the advance and the compensation in the same amount.

The first alternative failing, if the promisor decided in favour of the other alternative, it could not be said that there was any breach of any obligation under the agreement, and if that was so, there could arise no question of specific performance of the contract.

4. Jurisdiction:

The jurisdiction to order specific performance of a contract should be based on the existence of a valid and enforceable con­tract.

5. Lawful owner:

Possessory title is a good title as against everybody other than the lawful owner. A person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession.

6. Performance of contract:

Trial Court found that there was no con­tract of sale, as required by Article 299 between plaintiff and Union of India. Rather, plaintiff was in unlawful occupation and, therefore, after evicting him. Union of India, delivered possession of house to the appellant in ac­cordance with law. Refusal of decree by trial Court. Erroneously reversed by High Court. However, since only appellant came to Supreme Court against decree of High Court, his right could not be adversely affected in execution of decree by plaintiff against Union of India.

7. Possession against landlord:

Under the Indian law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy his possession is juridical and that possession is protected by stat­ute. Under Section 9 of the Specific Relief Act a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to Court un­der Section 9 and claim possession against the true owner.

8. Promises:

In Halsbury’s Laws of England (4th Edn., Vol. 9, para 446) on alternative promises we read:

“When a promise is made in a alternative form and one alternative is impossible to perform, the question whether the promisor is bound to perform the other or is altogether excused depends on the inten­tion of the parties to be ascertained from the nature and terms of the contract and the circumstances of the particular case. The usual result in such a case will be that the promisor must perform the alternative which remains possible; but it may be that on the proper construction of the contract there is not one obligation to be performed in alternative ways but one obligation to be performed in one way unless the promisor chooses to substitute another way, in which case, the primary obligation being impeded, the promisor is not bound to exercise the option for the benefit of the other party.”

9. Question of:

Section 9 of the Specific Relief Act is no way in con­sistent with the position that as against a wrong-doer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of and that the wrongdoer cannot successfully resist the suit by showing that the title and right to possession are in a third person.

10. Recovery of movable property:

In the instant case, the suit was for the recovery of 250 Tolas gold and in the alternative of its money value Rs. 34,000/-. The suit was decreed by the trial Court. The appeal preferred was dismissed. The Supreme Court in appeal under Article 136 of the Con­stitution interfered with the concurrent findings of the Courts below by holding that the story of the plaintiff that he had entrusted 250 Tolas gold to the defendant was baseless and artificial and set aside the judgments of the lower Courts.