Holding

The Supreme Court held that the High Court may re‑appraise evidence when findings are vitiated, that unserved notices are deemed served under Section 27, and that compensation can be awarded in lieu of specific performance under Section 21 even when the contract becomes impossible due to acquisition.

Summary

Jagdish Singh appealed a High Court decree that ordered specific performance of a reconveyance agreement with Natthu Singh. The Supreme Court examined whether the High Court could re‑appraise evidence in a second appeal, whether unserved notices were deemed served, and whether compensation could replace specific performance when the land was acquired by the State. It held that the High Court may correct factual findings if they ignore relevant evidence, that notices returned unserved are presumed served under Section 27 of the General Clauses Act, and that Section 21 of the Specific Relief Act permits awarding compensation in lieu of specific performance even when the contract becomes impossible through acquisition. The Court allowed amendment of the plaint to claim such compensation and measured the award by Section 73 of the Indian Contract Act, deducting Rs.1,50,000 for the appellant’s litigation expenses. The decree was modified to grant compensation instead of specific performance and the appeal was dismissed.

Issues considered

The High Court's power to re‑appraise evidence and disturb findings of fact in a second appeal.
Whether the contract became incapable of specific performance due to State acquisition and if compensation can be awarded under Section 21 of the Specific Relief Act.
Whether notices unserved because of refusal to accept are deemed served under Section 27 of the General Clauses Act.
The permissibility of amending the plaint to claim compensation in lieu of specific performance under the proviso to Section 21(5).

Legislation cited

Code of Civil Procedure, 1908s. 100
General Clauses Act, 1897s. 27
Indian Contract Act, 1872s. 73
Specific Relief Act, 1963s. 21(2), s. 21(4), s. 21(5)

Subjects

Specific performanceCompensation in lieuContract impossibilityLand acquisitionAmendment of plaintRe‑appraisal of evidenceGeneral Clauses ActSpecific Relief ActIndian Contract Act

Judgment

JAGDISH SINGH
v.
NATTHU SINGH

NOVEMBER 25, 1991

[M.N.VENKATACHALIAH AND S.C.AGRAWAL, JJ.] B
Specific ReliefAct, 1963: Section 21 (2), (4) & (5)-Proviso.

Suit for specific performance-Acquisition of suit properties during
the pendency of second appeal-Effect of-Nature of relief available to
plaintiff-Power of Court to grant compensation-Held where the con- C
tract becomes impossible of performance for no fault of plaintiff--Court
can award compensation in lieu and substitution of specific performance-
Measure of compensation is by the standards ofSection 73 of the Contract
Act--Scope of the Proviso explained-Distinction between Indian Law
and English law discussed.
D
Code of Civil Procedure, 1908: Section JOO .

Second Appeal-High Court-Power to reappreciate evidence and
disturb concurrent findings offact-Held findings offact vitiated by non-
consideration of relevant evidence can be reversed.
E
General Clauses Act, 1897: Section 2 7.

Suit for specific performance-Notice issued by plaintiff-Refusal to
accept by defendant-Notice returned unserved-Held notice must be pre-
sumed to have been served-Averments in the Notices could be treated as i

part to the plaint. ' F :

By an agreement dated 3.7.1973 the respondent sold two plots
to the appellant for a co.,sideration of Rs.15,000. By another agree-
ment, entered into between the parties oit the same day, the appel-
lant agreed to reconvey the said properties to the respondent against
payment of Rs.15,000 within two years. Within the stipulated period
the respondent (PlaintifO instituted a suit for specific performance
alleging that despite offer of performance and tendering the price,
the Appellant (Defendant) refused reconveyance of the properties.

The Trial Court dismissed the suit by holding that the Re-
spondent was not ready and willing to perform the contract, and. H

567
568 SUPREME COURT REPORTS (1991] SUPP. 2 s.c;.R.

A that the time was essence of the reconveyance agreement. The first
Appellate Court dismissed the respondent's appeal.

The respondent preferred second appeal before the High Court.
Relying upon the two notices issued by the Respondent to the appel-
lant before filing of the suit which contained the averments that he
B was willing and ready to perform the contract, the High Court re-
versed the findings of the two courts below and allowed the appeal
and held that Respondent-Plaintiff was willing to perform the con-
tract and that the Appellant was the party in breach. Accordingly it
passed a decree of specific performance of an agreement for sale of
land.
c
During the pendency of the Second Appeal, suit properties
were acquired by the State for public purposes and the High Court
rejected the plea that after the land has been acquired by the ·state
corpus of the Land had ceased to exist and no decree for specific
performance can be granted.
D
In defendant's appeal to this Court it was contended on his
behalf (1) that the High Court erred in reappreciating the evidence
in second appeal and in disturbing the concurrent findings of fact
that Respondent was not willing and ready to perform the contract;
(2) that in view of the acquisition of the suit-properties the contract
E itself became incapable of specific performance and to such a case
the power to give compensation as an alternative to specific per-
formance did not extend.

Modifying the decree of the High Court, this Court,

F HELD:t. Where the findings by the Court of facts are vitiated
by non-consideration of relevant evidence or by an essentially erro-
neous approach to the matter, the High Court is not precluded from
recording proper findings. (572-H]

l.1 The notices issued by the respondent to the appellant con~ , ·
G taioing the averments that he was ready and willing to perform the
/··
contra~t whic'1 were not actually served on the appellant because of
his refusal tg accept them must be presumed to have been served as ',;--
contemplated by Sect.i~n 27 of the General Clauses Act. Therefore
the High Court was righ~ in relying upon the averments in the
notices which could be treated as part to the plaint. Accordingly the
H finding of the High Court tf•a~ Respondent was willing and ready to
JAGDISH SINGH v. NATIHU SINGH 569

perform the contract and that it was the Appellant who was in A
breach is accordingly confirmed. [572 F-G, 578 H, 579-A]

2. Section 21~ofthe Specific Relief Act, 1963 enables the Plaintiff
in a suit for specific performance also to claim compensation for its
breach either in addition to or in substitution of, such performance.
However, when the plaintiff by his option has made specific per- B
formance impossible, Section 21 does not entitle him to seek dam-
ages. That position is common under the English and Indian Law
namely under Section 2 of Lord Cairn's Act, 1858 and Section 21 of
the Specific Relief Act, 1963. But under the Indian Law the expla-
nation to sub-section (5) of Section 21 makes a specific departure
and the jurisdiction to award damages remains unaffected by the C
fact that without any fault of the plaintiff, the contract becomes
incapable of specific performance. [574-D, 577, H-C]

Piarey Lal v. Hori Lal, (1977}--2 S.C.R. 915, distinguished and
held inapplicable.
D
Mohamad Abdul Jabbar & Ors. v. Lalmia & Ors., A.I.R. (34) 1947
Nagpur 254, disapproved. ! ,

Ardeshir H. Mama v. Flora Sessdon, A.I.R. 1928 Privy Council '
208, explained.
,E
3. However, so far as the proviso to sub-section (5) of Section ·
21 is concerned, two positions mu·st to kept clearly distinguished. If
the amendment relates to the relief of compensation in lieu of or in
addition to specific performance where the- plaintiff has not aban- ;
doned his relief of specific-performance the Court will allow the : F
amendment at any stage of the proceeding. That is a claim for ·
compensation falling under section 21 of the Specific Relief Act,
1963 and the amendment is one under the proviso to sub-section (5).
But different and less liberal standards apply if what is sought by
the amendment is the conversion of a suit· for specific performance
into one for damages for breach of contract in which case Section
G
73 of the Contract is invoked. This amendment is under the disci-
pline of Rule 17, Order 6, C.P.C. The fact that sub-section (4), in •
turn, invokes Section 73 of the Indian Contract Act for the prif.i- ·
pies of quantification and assessment of compensation does not ob-
literate this distinction. (575 B-C]
H
570 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A 3.1 In the instant case, assuming that the Respondent had not
specifically sought for compensation in lieu of sp~cific performance
the amendment is permitted in order that complete justice is done~
[578~BJ

3.2 The measure of the compensation is by the standards of
B Section 73 of the Indian Contract Act. Here the English Rule in
Bain v. Fothergill that the purchaser, on breach of the contract,
cannot recover for the loss of his bargain is not applicable. [578-CJ

Bain v. Fothergill, 1874 L.R. 7 House of Lords 158, held inappli-
cable.
c Pollock & Mulla on Contract (10th edn.) p.663; Nagardas v.
Ahmedkhan, (1895) 21Born.175, referred to.

3.3 In the instant case, the quantum· of the compensation is
ascertainable with reference to the determination of the market
value in t.he land acquisition proceedings. The compensation awarded
D may safely be taken to be the measure of damages subject, of course,
to the deduction therefrom of money value of the services, time and
energy expended by the appellant in pursuing the claims of compen-
sation and the expenditure incurred by him in the litigation culmi-
nating in the award. [578-G]
E 4. Accordingly there will be a decree awarding to the Re-.
spondent compensation in lieu and substitution of one for specific
performance which but for the acquisition Respondent would have
been entitled to; the quantum and the measure of the compensation
being the entire amount of compensation determined for the acquisiton.
of the suit-properties together with all the solatium, accrued inter-
F est and all other payments under the law authorising the acquisition
less a sum of rupees one lakh fifty thousand only which shall go to
the Appellant towards his services, time and amounts spent in pur-
suing the claims for compensation as well as the consideration stipu-
l~ted for reconveyance. [579 E-F]

'G CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4916 of
1991

From the Judgment and Order dated 5 .4.199 I· of the Allahabad High >-- -
Court in Second Appeal No. 3395of1978.

H Manoj Swatup and Ms. Lalita Kohli for the Appellants.
JAGDISH SINGH v. NATIHU SINGH [VENKATACHALIAH, J.] 571

B.S. Nagar for Goodwill Indeevar for the Respondent. . A;.

The Judgment of the Court was delivered by
:(

VENKATACHALIAH, J. Special leave 'is granted and the appeal
taken-up for final hearing and disposed of by this judgment. We have.
heard Sri Manoj Swarup, learned counsel for the Appellant and Shri GooowiU B
Indeevar for the Respondent. !

2. Appellant was Defendant in a suit for specific performance. He
seeks special leave to appeal to this Court from the judgment and order
dated 5.4.1991 of the High Court of Allahabad in Second Appeal No.3395
of 1978 decreeing, in reversal of the decrees of dismissal entered by the
two courts below, specific performance of an agreement for sale of land.
c
3. On 3.7.1973 Respondent-Natthu Singh sold Plot No.195 meas~
uring 5 bighas and 18 bis~as and Plot No.196 measuring 9 bighas and 8
biswas of Gulistapur ViUage, Pargana Dadri to the appellant for a consid~
eration of Rs.15,000. On the very day, i.e., 3.7.1973, another agreement Di
was entered into between the parties whereunder Appellant agreed to
reconvey the said properties to the Respondent against payment ofRs.15,000~
within two years. I
On 2.6.1975, well within the period of two years stipulated for the
performance of the agreement to re-sell, Respondent instituted the suit for
specific performance alleging that despite off~r of performance and ten, E 1

dering the price, Appellant, with the dishonest intention of appropriating
the properties to himself refused reconveyance. The Appelhµ1t contested
the suit principally on the ground that Respondent was never ready and
willing to perform the contract and that Respondent himself was in breach:

4. The trial court framed the necessary and relevant issues stem- F
ming from the pleadings and on its own appreciation of the evidence on
record came to find against the Respondent that he was ready and willing
to perform the contract; and that the agreement, being one of reconveyance1
time was of its essence. The suit was accordingly dismissed. Respondent's
first appeal before the learned Ilnd Additional District Judge, Bulandshahar
was also unsuccessful. · ' G·

5. However, in Respondent's second appeal, the High Court re-'
versed the findings of the two courts below and allowing the appeal held
that Respondent-Plaintiff was ready and willing to perform the contract;
that the Appellant was the party in breach; and that, therefore, Respondent
was entitled to a decree. This decree is assailed in this appeal. H'
572 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

A 6. Sri Manoj Swarup appearing in support of the appeal urged two
contentions; the first is that the High Court was in error in embarking
upon a re-appraisal of the evidence in a second-appeal to distrub concur-
rent findings of fact that Respondent was-not willing and ready to perform
the contract. The second contention is that contract itself became incapa-
ble of specific perfonnance in view of the fact that during the pendency
B of second appeal the State h~d initiated proceedings for compulsory ac-
quisition of the suit-properties and the subject-matter of the suit itself
ceased to be available. Counsel says the power to give compensation as an
alternative to specific performance did not extend to a case in which the
relief of specific performance had itself become impossible.

C 7. On the first question, as to the readiness of the Respondent to
perform his obligations, the High Court noticed that on 30th January,
1974 even before institution of the suit Respondent and his brother had
sold another property belonging to them for a price of Rs. 30,000 and that
Respondent had the necessary wherewithal to perform his part of the
bargain. The High Court held :
D
" ... Thus, the plaintiff admittedly had received Rs.15,000/- on
30.1.1974 and soon thereafter the first notice was issued to the
defendant asking him to indicate a date for executing the sale-
deed and also expressing his readiness and willingness. There
is no evidence on the record that between 30.1.1974 and the
E date of suit or thereafter the plaintiff had parted with this
money."
The· High Court also. noticed that the two notices dated 23 .3 .1974
and 6.5.1975 respectively issued by the Respondent to the Appellant be-
fore the suit contained the avennents that he was ready and willing to
fF perform the contract. The notices were, no doubt, not actually served on
the appellant as they had come back unserved upon the alleged refusal by
the appellant to accept them. The High Court relied upon the avennents in
the notices which could be treated as a part to the plaint having been
referred to and relied upon therein.

G 8. In our opinion, the High Court was right in its view. The notices
must be presumed to have been served as contemplated by Section 27 of
the General Clauses Act. As to the jurisdiction of the High Court to re-
appreciate evidence in a second appeal it is to be observed that where the
findings by the Court of facts is vitiated by non-consideration of relevant
evidence or by an essentially erroneous approach to the matter, the High
H Court is not precluded from recording proper findings. We find no sub-
stance in the first contention. ·
JAGDISH SINGH v. NATIHU SINGH [VENKATACHALIAH, J.] 573

9. The second contention is, however, not without its interesting A
aspects. During the pendency of the second appeal, the properties were
..,
acquired by the State for a public purpose. This is not disputed. It would
appear that a compensation of Rs.4 lakhs or thereabouts has been deter-:-
mined. That sum, along with the generous solatium and the rates of inter~ I

est provided by the statute would now be a much larger amount. Before
the High Court, Appellant sought to rely upon the decision of this Court in B
Piarey Lal v. Hori Lal, [1977] 2 S.C.R. 915. That was a case where in
proceedings of consolidation the subject-matter of an agr~ement to sel~
was allotted tq a person other than the vendor, the relief of specific
performance was held not to survive. The High Court rightly held that
....
pronouncement was distinguishable and inapplicable to the present con-
troversy. c
As to the relief available to a plaintiff where the subject matter was
acquired during the pendency of a suit for specific-performance the High
Court said:

" ...The learned counsel for the respondent has vehemently urged D
that after the land has been acquired its corpus has ceased to
f
exist and no decree for specific performance can now be granted.
In my opinion with the acquisition of the land plaintiffs right~
do not get extinguished in totality. The appellate court always
suitably mould the relief which the circumstances of the case
may require or permit. The power in this regard is ample and E
wide enough ...
... However, in the present case the property has not been to-
tally lost. What happens in the case of the acquisition is that
\ for the property compensation payable in lieu there of is sub-
stituted ..." F
The.High Court issued these consequential directions:

"If the decree for specific performance of contract in question
is found incapable of being executed due to acquisition of
subject land, the decree ~,;;tll stand suitably substituted by a
"' decree (er realisation: o.f cofu.pensation payable in lieu thereof G
as may·~~ 6r have been determined under the relevant Act and ·
the plaiiitiff shall have a right to recover such compensation
together with solatium and interest due thereon. The plaintiff
shall have a right to recover it from the defendant if the de-
fendant has already realised these amounts and in that event
ihe defendant shall be further liable to pay interest at the rate H
574 SUPREME COURT REPORTS. (1991] SUPP. 2 S.C.R.

A of twelve per cent from the date of realisation by him to the
date of payment on the entire amount realised in respect of the
disputed land."
We are afraid the approach of the High Court is perhaps somewhat
an over-simplification of an otherwise difficult area of law as to the nature
of relief available to a plaintiff where the contract becomes impossible of
B specific performance and where there is no alternative prayer for compen-
sation in lieu or substitution of specific performance. While the solution
that has commended itself to the High Court might appear essentially just
or equitable, there are certain problems both of procedure and of sub-
stance in the administration of the law of specific relief particularly in the
area of award of an alternative relief in lieu or substitute of specific
c performance that require and compel consideration, especially in view of
some pronouncements of the High Courts which have not perceived with
precision, the nice distinctions between this branch of the law as adminis-
tered in England and in India.

l 0. Section 21 of the Specific Relief Act, 1963 corresponding to
D
Section 19 of 1877 Act enables the plaintiff in a suit for specific perform-
ance also to claim compensation for its breach either in addition to or in
substitution of, such performance. Sub-sections (2), (4) and (5) of Section
21 are material and they provide :

"(2). If, in any such suit, the Court decides that specific
E
performance ought not to be granted, but that there is a con-
tract between the parties which has been broken by the defend-
ant, and that the plaintiff is entitled to compensation for that
breach, it shall award his such compensation accordingly. -~
I

(3) [Omitted as unnecessary.]
F
(4) In determining the amount of any compensation awarded
under this section, the Court.shall be guided by the principles
specified in Section 73 of the Indian Contract Act, 1872, 9 of
1872.
(5) No compensation shall be awarded under this section un-
G less the plaintiff has claimed such compensation in his plai~t:
Provided that where the plaintiff has not claimed any such
compensaion in the plaint, the Court shall, at any stage of the
proceeding, allow him to amend the plaint on such tenns as
may be just, for including a claim for such compensation.
H Explanation·The circumstance that· the contract has become
JAGDISH SINGH v. NATIHU SINGH [VENKATACHALIAH, J.] 575

incapable of specific performance does not preclude the C~urt :A
•.' from exercising the jurisdiction conferred by this section."

(emphasis added)

So far as the proviso to sub-section (5) is concerned, two positions
must be kept clearly distinguished. If the amendment relates to the relief ;B
o~ compensation in lieu of or in addition to specific performance where
tile plaintiff has not abandoned his relief of specific-performance the court
Will allow the amendment at any stage of the proceeding. That is a claim
for compensation falling under Secion 21 of the Specific Relief Act, 1963
-\
and the amendment is one under the proviso to sub-section (5). But differ-
ent and less liberal standards apply if what is sought by the amendment is IC
the conversion of a suit for specific performance into one for damages for
breach of contract in which case Section 73 of the Contract Act is in-
voked. This amendment is under the discipline of Rule 17 Order 6, C.P :c.
The fact that sub-section (4), in tum, invokes Section 73 of the Indi.an
Contract Act for the principles of quantification and assessment of com-
' pensation does not obliterate this distinction. D
I
.., __
The provisions of Section 21 seem to resolve certain divergencies of
judicial opinion in the High Courts on some aspects of the jurisdiction· to
award of compensation. Sub-section (5) seeks to set at rest the divergence
of judicial opinion between High Courts whether a specific claim in the
plaint is necessary to grant the compensation. In England Lord Cairn's ~,
(Chancery Amendment) Act, 1858 sought to confer jurisdiction upon the
Equity Courts to award damages in substitution or in addition to specific
performance. This became necessary in view of the earlier dichotomy in
-\'
the jurisdiction between common law and Equity Courts in the matter· of
choice of the nature of remedies for breach. In common law the remedy
for breach of a contract was damages. The Equity Court innovated t~e 11
remedy of specific performance because the remedy of damages was found
to be an inadequate remedy. Lord Cairn's Act, 185 8 conferred jurisdictiqn
upon the Equity Courts to award damages also so that both the reliefs
could be administered by one court. Section 2 of the Act provided :

r---_.l..
"In all cases in which the Court of Chancery has jurisdiction ~o G
entertain an application for specific performance of any cov-
enant, contract or agreement it shall be lawful for the SaJt'\e
Court if it shall think fit to award damages to the party injured
either in addition to or in substitution for such specific per-
fonnance and such damages may be assess~d as the Court shall
direct." ij
576 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A This is the historical background to the provisions of Section 21 of
the Specific Relief Act, 1963 and its predecessor in Section 19 of the 1877
Act.

11. In Mohamad Abdul Jabbar & Others v. Lalmia & Others..A.I.R
(34) I 947 Nagpur 254 specific performance of an agreement of sale dated
B 16th January, 1934, was sought by the institution of a suit on 15th Janu-
ary, 1937. During the pendency of the suit, on 20th April, 1937, the
provincial Government started land acquisition proceedings respecting the
subject-matter of the suit and the same was acquired. The High Court
upheld the dismissal of the suit for specific performance and referred an
amendment for award of damages. On the obvious impermissibility of
C specific performance the Nagpur High Court sarcf:

"We accordingly conclude that specific performance is now .
impossible and we cannot decree it for "equity like nature does
nothing in vain." We cannot hold the plaintiffs-appellants enti-
tled to the compensation money into which the property was
D converted because they had no right or interest in that prop-
erty .... "
Refusing the amendment for the relief for payment of money the
High Court held :

"We would not allow amendment also because on the facts
E
found by the trial Court (with which we see no reason, what-
ever, to differ) we would have refused specific performance,
and the claim for damages on this account would also have
been negatived because damages could have been awarded 't-
only if specific performance could rightly have been claimed.
F The appeal, therefore, fails and is dismissed with costs."
Support for these conclusions was sought from the oft quoted, but
perhaps a little misunderstood, case of Ardeshir H. Mama v. Flora Sassoon
A.LR. 1928 Privy Council 208. The passage in Sassoon's case relied upon
by the Nagpur High Court is this : ·

G "In a series of decisions if was consistently held that just as its
l..,.-
power to give damages additional was to be exercised in a suit
in which the Court had granted specific performance, so the fj
power to give damages as an alternative to specific perform- tr'
~
ance did not extend to a case in which the plaintiff had de- t
\..
barred himself from claiming that form of relief, nor to a case
H in which that relief had become impossible.
I

l' JAGDISH SINGH v. NATTHU SINGH [VENKATACHAI.IAH, J.] 577

The case of 52 Bombay 597 fell within the first category of , A
-i cases described above under the alternative relief of damages.
This case falls within the second part where the relief of spe-
~.
cific performance has become impossible."
(emphasis supplied)
The second part of the observation of the Nagpur High Court, with
great respect to the learned JUdges proceeds on a fallacy resulting from
,B
the non-perception of the specific departUre in the Indian law. In Lord
Cairn's Act, 1858 damages could not be awarded when the contract had,
... for whatever reason, become incapable of specific perfonnance. But under
\,,
the Indian law the explanation makes a specific departure and the jurisdic-
tion to award dam'ages remains unaffected by the fact that without any
fault of the plaintiff, the contract becomes incapable of specific perform- 'C
ance. Indeed, Sassoon's case is not susceptible of the import attributed to
it by the Nagpur High Co~. Sassoon's case itself indicated the departure
made in Indian Law by the.Explanation in Section 19 of the 1877 Act,
which is the same as the Explanation to Section 21 of the 1963 Act. The
Judicial Committee, no doubt, said that Section 19 of the 1877 Act "em-
t- bodies the same principle as Lord Cairn's Act and does not, any more :0
than did the English Statute enable the court in a specific performance suit
to award 'compensation for its breach' where at the hearing the plaintiff
debarred himself by his own action from asking for a specific decree". But
what was overlooked was this observation of Lord Blanesburgh :

"except as the case provided for in the explanation-as to
E
which there is introduced an express divergence .fi·om Lord
Cairn's Act. as expanded in England"
i '<,
(emphasis supplied)
Indeed the following illustration of the Explanation appended to
Section 19 of Specific Relief A.ct, 1877 makes the posit.ion clear: ·p

"Of the Explanation-A, a purchaser, sues B, his vendor, for
specific performance of a contract for the sale of a patent.
Before the hearing of the suit the patent expires. The Court
may award A, compensation for the non-performance of the
.." contract, and may, if necessary, amend the plaint for that pur-
pose."
G

When the plaintiff by his option has made specific perfonnance
,,
impossible, Section 21 does not entitle him to seek damages. That posi-
tion is common to both Section 2\of Lord Cairn's Act, 185-8 and Section
21 of the Specific Relief Act, 1963. But in Indian Law where t~e contract, H
578 SUPREME COURT REPORTS [1991) SUPP. 2 ·S.C.R.

A for no fault of the plaintiff, becomes impossible of performance section 21
enables award of compensation in lieu and substitution of specific per- .>-
formance.

We, therefore, hold that the second contention of Sri Manoj Swarup
is not substantial either.

12. Learned counsel were not specific on the point whether the
Respondent had actually asked for compensation in lieu of specific per-
formance. We may assume that it was not so specifically sought. In order
that formality in this behalf be completed, we permit the amendment here
and now so that complete justice is done.
c
13. The measure of the compensation is by the standards of Section
73 of the Indian Contract. Here again the English Rule in Bain v. Fothergill,
(i874) L.R. 7 House of Lords 158 that the purchaser, on breach of the
.contract, cannot recover, for the loss of his bargain is not applicable. In
Pollock & Mulla on Contract (10th E<in.) the law on the matter is set out
thus:
'
l. i -'I
"Where, therefore, a purchaser of land claims damages for the
loss of his bargain, the question to be decided is whether the
damages alleged to have been caused to him 'naturally arose
in the usual course of things from such breach'; and in an
E ··ordinary case it would be difficult to hold otherwise." [p. 663]
Learned Authors adopt the following observation of Farran C.J. in
Nagardas v. Ahmedkhan, (1895) 21 Born. 175:

"The Legislature has not prescribed a different measure of
F damages in the case of contracts dealing with land from that
laid down in the case of contracts relating to commodities".
In the present case there is no difficulty in assessing the quantum of
the compensation. That is ascertainable with reference to the determina-
tion of the market value in the land acquisition proceedings. The compen-
sation awarded may safely be taken to be the measure of damages subject,
G of course, to the deduction therefrom of money value of the services, time
and energy expended by the appellant in pursuing the claims of compen-
sation and the expenditure incurred by him in the litigation culminating in
the award.

_14. We accordingly confirm the finding of the High Court that Re~' ··
spondent was willing and ready to perform the contract and that it was the
JAGDISH SINGH v, NATTHU SINGH [VENKATACHALIAH, J.] 579

,Appellant who was in breach. However, in substitution of the decree for A
'..specific perfonnance, we make a decree for compensation, equivalent to
the amount of the land acquisition compensation awarded for the suit
- lands together with solatium and accrued interest, less a sum ofRs.·l,50,000
(one lakh fifty thousand only) which, by a rough and ready estimate, we
q!13lltify as the amount to be paid to the appellant in respect of his serv-
ices, time and money expended in pursuing the legal-claims for compen- B
sation.

15: We may here notice one other submission of Sri Manoj Swarup.
He found fault with the operative part of the judgment of the High Court,
Which, according to Sri Manoj Swarup, hact not even provided for the
payment to the appellant of Rs.15,000 the--stlpulated consideration for C
reconveyance. There is this apparent omissioo"fo the operative part of the
High Court's judgment. But this is only a technicality. The operative part
granting relief should be read with the relevant prayers in the plaint itself.
But that is not of any practical significance here in as much as we have
{also taken this amount of Rs.15,000 into account in somewhat generously
quantifying the litigation-expense's at Rs. l ,50,000 as payable to the appel- D ,.
lant out of the sums awarded for the acquisition. Therefore, there is no
need for Respondent to pay the sum ofRs.15,000 additionally.
b

16. In the result there will be a decree awarding to the Respondent
compensation in lieu and substitution of one for specific perfonnan<(e.
which but for the acquisition Respondent would have been entitled to the 'E
quantum and the measure of the compensation being take entire amount of
compensation determined for take acquisition of the suit-properties ,to-
gether with all the solatium, accrued interest and all other payments
under the law authorising the acquisition, less a sum of Rs. l ,50,000_ (Ru-
pees one lakh fifty thousand only) which shall go to the Appellant towards
his services, time and amounts spent iii pursuing the claims for compensa- F
tion as well as the consideration stipulated for reconveyance.

The sum of Rs. l ,50,000 is allowed to be paid to the Appellant on his
assurance that he has not received any part of the compensation earlier. If
any amount has been received by the Appellant out of compensation ,
awar_9ed for the acquisition, such sums shall go in reduction of the sum of G
Rs.1,50,000, the difference being for the benefit of and be paid to the
Respondent additionally.

This order shall be sufficient authority for the land acquistion au-
thorities or the Courts wherever the matter may be pending for the appor-
tiol)Il\ent and payment of the compensation for. the acquisition of the suit H
\\

580 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A property between the Appellant and the Respondent in the manner indi-
cated above. These directions shall, of course, not affect or prejudice the
cl_aim of other claimants, if any, whose claims are to be determined in the ,,,_..._
said land acquistion proceedings, the assumption implicit in this appor-
tionment being that there are no other claimants in the land acquisition i, __ .Jl"'f
proceedings. If such apportionment and withdrawal _is not possible, the -
B decree in tem1s of this judgment shall be worked out in execution pro-
ceedings.

The decree under appeal is modified accordingly. No costs.

T.N.A. Decree modified .
. "'

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