Section 21(5) of SRA, 1963 makes it clear that no compensation will be awarded under this Section unless the plaintiff has claimed such compensation in his plaint: Delhi HC
The explanation of section 21 of Specific Relief Act, 1963 states that because the contract has become incapable of specific performance, it does not preclude the Court from exercising the jurisdiction conferred by this Section. This judgment was delivered by single bench comprising hon’ble Justice Rajiv Shakdher at Delhi High Court in the matter of Shri Vijay Israni v. Shri Salim Lalvani [CS (OS) – 1995 OF 2008].  The ATS concerns offer of half unified offer in a developed property situated at A-1/149, Safdarjung Enclave, New Delhi 110029 [hereafter alluded to as “suit property”] by Mr. Lalvani for Mr. Israni. The absolute thought which Mr. Israni was needed to pay Mr. Lalvani under the ATS was Rs. 4 crores. The ATS records that out of the all-out thought of Rs. 4 crores, Rs. 5,00,000 was paid by Mr. Israni to Mr. Lalvani at the hour of its execution. Besides, regarding Clause 2.1 of the ATS, inside 60 days of its execution, two concurrent advances hosted to be taken by the gatherings. Consequently, while Mr. Lalvani was needed to execute a General Power of Attorney [GPA] and uncommon intensity of lawyer [SPA] for Mr. Israni, the last for example Mr. Israni was needed to transmit Rs. 3,18,91,000/ – as “clear assets” to the predetermined ledger of Mr. Lalvani. The matter was taken up for hearing on 30.07.2020 on account of an application [i.e., I.A. No. 6053/2020] moved on behalf of Mr. Israni by Mr. Pragyan Sharma, Advocate. Although there was an affidavit of Mr. Israni dated 20.07.2020 on record, on that date, Mr. Pragyan Sharma sought time to file an affidavit in terms of order dated 09.07.2020 by 31.07.2020. The matter was directed to be listed on 04.08.2020. In the interregnum, Mr. Israni filed an affidavit dated 31.07.2020. On 04.08.2020, initially, there was no appearance on behalf of Mr. Israni.
J 1 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgement reserved on 11.09.2020 Judgement pronounced on 11.12.2020 CS1995 2008 SHRI VIJAY ISRANI .....Plaintiff Through Mr. Kirti Uppal Senior Advocate Sharma with Mr. Advocate. SHRI SALIM LALVANI .....Defendant Through Ms. Rashi Bansal and Mr. Sameer Singh Advs. along with Mr. Salim Lalvani i.e. defendant in person. HON BLE MR. JUSTICE RAJIV SHAKDHER RAJIV SHAKDHER J.: Preface: The plaintiff is one Mr. Vijay Israni who has filed a suit for specific performance of an agreement to sell dated 19.04.2008 which was countersigned by the defendant on 29.04.20081995 2008 Background facts: The ATS concerns sale of 50% undivided share in a built up property located at A 1 149 Safdarjung Enclave New Delhi 110029by Mr. Lalvani in favour of Mr. Israni. 2.1. The total consideration which Mr. Israni was required to pay Mr. Lalvani under the ATS was Rs. 4 crores. The ATS records that out of the total consideration of Rs. 4 crores Rs. 5 00 000 was paid by Mr. Israni to Mr. Lalvani at the time of its execution. 2.2. Furthermore in terms of Clause 2.1 of the ATS within 60 days of its execution two simultaneous steps had to be taken by the parties. Thus while Mr. Lalvani was required to execute a General Power of Attorney and special power of attorneyin favour of Mr. Israni the latter i.e. Mr. Israni was required to remit Rs. 3 18 91 000 as “clear funds” to the specified bank account of Mr. Lalvani. 2.3. As per Clause 2.2 of the ATS Mr. Lalvani was required to have the GPA and the SPA attested from the Indian High Commission at London. 2.4. The last tranche or the balance amount i.e. Rs. 76 09 000 was required to be paid by Mr. Israni to Mr. Lalvani within 90 days of execution of the ATS. Simultaneously upon Mr. Lalvani receiving the amount he was obliged to execute all relevant deeds and documents which would then result in the consummation of the sale transaction in consonance with the provision made in Clause 2.3 of the ATS. 2.5. The record shows that Mr. Lalvani served a notice of default dated 02.07.2008 on Mr. Israni alleging that he had defaulted in paying the second tranche i.e. Rs. 3 18 91 000 . In this communication Mr. Lalvani referred to the fact that he had executed the GPA and the SPA. Consequently Mr. Lalvani CS(OS) 1995 2008 called upon Mr. Israni to make good the payment of Rs. 3 18 91 000 by 2.6. Five days before the expiry of the 15 day window provided by Mr. Lalvani Mr. Israni vide communication dated 12.07.2008 sent his response wherein he inter alia averred that he had not committed a breach of any of the terms of the ATS and that Mr. Lalvani had failed to furnish proof of execution and attestation of the GPA and SPA. 2.7. Mr. Lalvani responded by issuing a rejoinder dated 21.07.2008 via his advocates. The rejoinder in effect terminated the ATS. Mr. Israni in turn replied to this termination notice vide communication dated 24.07.2008. Via this communication Mr. Israni called upon Mr. Lalvani to perform his obligation under the ATS. It is in this background that Mr. Israni approached this Court with the instant action for specific performance. Summons in the suit were issued on 22.09.2008 whereupon an opportunity was given to Mr. Lalvani to file his written statement. Upon completion of pleadings and admission and denial of documents the following issues in the suit were framed at the hearing held on 13.08.2010. On the pleadings of the parties following issues are framed for consideration: 1. Whether the suit is barred under Section 14of the Specific Relief Act OPD. 2. Whether the Plaintiff was ready and willing to perform his part of the contract If so its effect. OPP. 3. Whether the Plaintiff is entitled to the relief of specific performance as prayed OPP. 4. Relief." CS(OS) 1995 2008 6. Thereafter evidence in the matter was recorded an exercise which was concluded on 08.02.2017. The matter was put in the category of finals on 02.03.2017. The matter was heard by a coordinate bench and released from part heard on 23.01.2020. It is in this backdrop that the matter was called out for hearing on 09.07.2020. On that date Mr. Israni s son one Mr. Sunny Israni joined the proceedings. After hearing him and Ms. Rashi Bansal counsel for Mr. Lalvani the following order was passed. 1. The captioned suit has been called out today. 2. Mr. Sunny Israni the son of the plaintiff has joined the proceedings. 2.1 Mr. Israni says that he has instructions to convey to the Court that the plaintiff is interested in purchasing the subject property albeit at the current market value. 2.2 Mr. Israni further submits that according to the plaintiff the current market value of the subject property is Rs. 14.50 crores. 3. To demonstrate his bona fides Mr. Israni says the plaintiff will deposit the said amount i.e. Rs. 14.50 crores with the Registry of this Court by way of a pay order demand draft drawn in favour of the Registrar General of this Court. 3.1 Mr. Israni further states that while the money lies with the Registry of this Court the Court could appoint a valuer to ascertain the current market value of the subject property. CS1995 2008 6. Accordingly the plaintiff will deposit Rs. 14.5 crores by way of a pay order demand draft drawn in favour of the Registrar General of this Court within three weeks from today. 6.1 Once the pay order demand draft is deposited the same will be encashed and the money will be invested in an interest bearing security maintained with a nationalized bank. 6.2 A valuer will be appointed by the Court to ascertain the current value of the subject property once the plaintiff deposits the said amount albeit in the manner indicated hereinabove. 6.3 The plaintiff will file an affidavit in terms of what has been indicated hereinabove by me within one week from today. 7. Renotify the matter on 04.08.2020." 7.1. The matter was taken up for hearing on 30.07.2020 on account of an application moved on behalf of Mr. Israni by Mr. Pragyan Sharma Advocate. Although there was an affidavit of Mr. Israni dated 20.07.2020 on record on that date Mr. Pragyan Sharma sought time to file an affidavit in terms of order dated 09.07.2020 by 31.07.2020. The matter was directed to be listed on 04.08.2020. In the interregnum Mr. Israni filed an affidavit dated 31.07.2020. 7.2. On 04.08.2020 initially there was no appearance on behalf of Mr. Israni. 7.3. Ms. Rashi Bansal who appeared on behalf of Mr. Lalvani submitted that the affidavit was not in terms of the order dated 09.07.2020 inasmuch as Mr. Israni had indicated in the affidavit that if he was unable to deposit Rs. 14.50 crores for the entire property then he would restrict his claim to the refund of Rs. 5 00 000 along with interest or compensation as may be ordered by the Court. 7.4. Ms. Bansal said that on the other hand on 09.07.2020 Mr. Israni had indicated that if he was unable to deposit Rs. 14.50 crores for securing interest in the entire property he would not press the instant suit any further. In other words according to Ms. Bansal the assertion made by Mr. Israni in his affidavit CS(OS) 1995 2008 dated 31.07.2020 that he would restrict his claim to refund of Rs. 5 00 000 along with interest or compensation as may be ordered by this Court was contrary to the position adopted by him on 09.07.2020. After the matter had concluded for the day Mr. Sunny Israni i.e. the plaintiff s son joined the hearing and accordingly he was apprised of what had transpired in the hearing and that the next date in the matter was fixed as 10.08.2020. It is in these circumstances that on 10.08.2020 the Court recorded the following. 1. Concededly Rs. 14.50 crores which the plaintiff had offered to deposit in terms of his affidavit dated 31.07.2020 has not been deposited with this Court. Therefore if nothing else the suit vis a vis relief for specific performance even according to the plaintiff cannot be pressed further as per the stand taken by him in the aforementioned affidavit. 3. Mr. Kirti Uppal learned senior counsel along with Mr. Pragyan Sharma who appear on behalf of the plaintiff say that the money could not be deposited as the plaintiff was bereaved. 4. Ms. Bansal on the other hand says that the timeline fixed for the purpose of deposit of Rs. 14.50 crores expired on 07.08.2020 and that even according to the plaintiff he was bereaved on 08.08.2020. The record shows that on 09.07.2020 the plaintiff via his son had offered to deposit Rs. 14.50 crores with the Registry of this Court in order to demonstrate his readiness and willingness to purchase the subject property at the current market value. 5.1 The matter was fixed for further proceedings on 04.08.2020. In the interregnum the plaintiff approached the Court on 24.07.2020 when Mr. Sharma sought time to obtain instructions directly from the plaintiff as to whether the plaintiff would be willing to deposit Rs. 14.50 crores as indicated to this Court by his son on 09.07.2020. At request of Mr. Sharma the matter was posted for further proceedings on 5.3 On 30.07.2020 Mr. Sharma sought a day s accommodation to file an affidavit in terms of the order dated 09.07.2020. It is in this backdrop that plaintiff filed an affidavit dated 31.07.2020. In the affidavit dated 31.07.2020 the plaintiff made a deviation from the position that was taken on 09.07.2020 inasmuch as it was indicated in the aforementioned affidavit that if there was a failure to CS(OS) 1995 2008 deposit Rs. 14.50 crores the plaintiff would restrict his relief to seek refund from the defendant. 5.5 The precise assertion made in the affidavit dated 31.07.2020 in this behalf reads as follows: 7 The Plaintiff further undertakes that in case the Plaintiff is not able to deposit the sum of Rs. 14 50 00 000 as stated in this affidavit or as may be directed by this Hon ble Court the Plaintiff shall not proceed with the specific performance of the agreement dated 19.4.2008 concluded on 29.4.2008) and restrict his claim only to refund of the amount of Rs. 5 00 000 paid by him with such interest as this Hon ble Court may deem just and proper." 5.6 Consequently the matter was taken up by me on 04.08.2020 which was the date fixed in the ordinary course. Since there was initially no appearance on behalf of the plaintiff on the said date when the matter was called out it was posted for today i.e. 10.08.2020. 5.7 However just after the matter was concluded plaintiffs son joined the proceedings which is when he was apprised of the order passed on the said date i.e. 04.08.2020. Given these circumstances I am not inclined to grant further time to the plaintiff. I am persuaded to proceed in this line manner not only given the history of the proceedings as noticed hereinabove but also given the fact that nothing has been brought on record except for submissions made across bar to show the fact that the plaintiff although ready and willing was in any way impeded in depositing the money qua which he otherwise had ample time. confined to specific performance. 7.1 Therefore in terms of the affidavit dated 31.07.2020 filed by the plaintiff the relief of specific performance is now not available to him. the plaint are rejected. Resultantly LA. 6053 2020 shall stand closed. 9. Mr. Uppal and Mr. Sharma say that they would want to address arguments on as to whether the plaintiff should be accorded the relief of 10. List the matter only for this purpose on 14.08.2020." Insofar as the relief sought in the instant suit is concerned it is Accordingly the reliefs sought in the prayer clause 19toof 7.6. To be noted in paragraph 5.5 of the order dated 10.08.2020 there is a reference to paragraph 7 of the affidavit dated 31.07.2020 filed by Mr. Israni. As a matter of fact paragraph 7 appears in the affidavit dated 20.07.2020 filed by Mr. Israni which is substantially same as paragraph 5 of the affidavit dated CS(OS) 1995 2008 31.07.2020 save and except that Mr. Israni has slipped in the word compensation apart from the expression refund. Paragraph 5.5 of the order dated 10.08.2020 was meant to advert to paragraph 5 of the order dated 31.07.2020. Submissions of counsels for the parties: Given the aforesaid circumstances counsels were heard thereafter not only on the aspect of refund but also on compensation. Counsel for Mr. Israni argued that since Mr. Israni had given up his claim for specific performance he was entitled to not only refund of Rs. 5 lakhs but also compensation in lieu of specific performance. An attempt was also made by the counsel for Mr. Israni to reopen the claim for specific performance by seeking to demonstrate that it was Mr. Lalvani who had breached his obligation to execute the GPA and SPA and have the same apostilled from the Indian High Commission at London before he could lay claim to the second tranche i.e. Rs. 3 18 91 000 . In support of the plea that Mr. Israni was always ready and willing to perform his part of the obligation his advocates sought to rely upon the fact that a demand draft and a bankers cheque dated 15.07.2008 and 16.07.2008respectively cumulatively amounting to Rs. 3 18 91 000 drawn on ICICI Bank Limited favouring Mr. Lalvani was prepared by Mr. Israni. 11. On the other hand Ms. Bansal on behalf of Mr. Lalvani had claimed that not only were the GPA and SPA executed and apostilled but also lay emphasis on the fact that as per Clause 2.1 of the ATS Mr. Israni was required to remit the second tranche to the specified bank account of Mr. Lalvani. As noticed above these arguments and counter arguments and the evidence led by each party lost significance since Mr. Israni himself had indicated that he was CS(OS) 1995 2008 interested in purchasing the entire property and not just Mr. Lalvani’s 50% share in the said property and that to demonstrate his ability he would deposit Rs. 14.50 crores with the Registry of this Court. Since Mr. Israni himself took the position that if he failed to deposit Rs. 14.50 crores he would not press the suit on 10.08.2020 the reliefs claimed in prayer clause 19toof the plaint were rejected. Analysis and Reasons: 12. Consequently at this stage all that I am required to consider is whether or not Mr. Israni is entitled to refund of Rs. 5 lakhs paid as advanceor compensation. 13. Let me first take the submission advanced on behalf of Mr. Israni concerning the refund of Rs. 5 00 000 . The claim for refund is pivoted in my view on two clauses of ATS i.e. Clause 1.2 and Clause 5.31. 13.1. While Clause 1.2 is suggestive of the fact that Rs. 5 00 000 was paid by Mr. Israni to Mr. Lalvani as an advance to be adjusted against full consideration payable qua the suit property Clause 5.3 states in no uncertain terms that in case Mr. Israni failed to rectify the default pointed out to him within 15 days of a written notice being issued in that behalf the ATS will stand terminated and Mr. Lalvani would not be liable to refund or return the amounts received up until the date of the notice of termination. 1 “1.2 The Second Party has paid an amount of Rs. 5 00 000 as advance payment out of the total Consideration Amount vide demand draft number 079546 dated 11.04.2008 drawn in favour of the First Party and the First Party acknowledges the receipt of the same. On occurring of the event of default the First Party shall give a written notice of 15 days to the Second Party and if the Second Party fails to rectify the default within the said period this Agreement shall stand terminated on the day following the 15th day and the First Party shall not be liable to refund return the amounts hereby received till the date of notice of CS(OS) 1995 2008 13.2. There is no dispute that the only amount received by Mr. Lalvani up until the date of issuance of the termination notice i.e. communication dated 21.07.2008 was Rs. 5 00 000 . The evidence on record shows that the amount was received in pound sterling by Mr. Lalvani in two instalments i.e. GBP 4 500 and GBP 500. 13.3. A plain reading of Clause 1.2 of the ATS would show that Rs. 5 00 000 was paid as an advance to be adjusted against the full consideration of Rs. 4 crores agreed to be paid qua the suit property. The following portion of Clause 1.2 of the ATS makes this amply evident. 1.2 The Second Party has paid an amount of Rs. 5 00 000 as advance payment out of the total Consideration Amount vide demand draft number 079546 dated 11.04.2008 drawn in favour of the First Party and the First Party acknowledges the receipt of the same." Emphasis is mine] 13.4. What is however peculiar about this particular ATS is the provision made in Clause 5.3 which empowers the vendor to retain amounts received by him up until the date of the notice of termination if the default pointed out therein was not cured by the 16th day of issuance of such notice. 13.5. Ordinarily such stipulation is found juxtaposed in such like agreements with amounts paid as earnest money . Earnest money is construed as part of the purchase price when the transaction is consummated and is forfeited by the vendor when the transaction falls through on account of the fault of the vendee.2 13.6. It is thus in the nature of a contract of security whose primary purpose is to guarantee performance and in that sense is strictly speaking different 2 See: Charanjeet Singh vs. Har Swarup AIR 1926 PC 1 CS(OS) 1995 2008 from the real agreement to sell. Therefore if the real agreement to sell is rescinded the contract of security still survives which is evidenced either by an express covenant of forfeiture or is implied by law.13.7. However as indicated above Rs. 5 00 000 was paid as advance to be adjusted against total consideration. Therefore sans the forfeiture clause i.e. Clause 5.3 of the ATS the said amount would have to be repaid by Mr. Lalvani to Mr. Israni notwithstanding the fact Mr. Israni had committed the breach of the obligation placed upon him under the ATS. In this case apart from anything else Mr. Israni has failed to demonstrate that he was ready and willing to pay the second tranche to Mr. Lalvani in terms of Clause 2.1 of the ATS. This clause required Mr. Israni to remit within 60 days of the execution of the ATS Rs. 3 18 91 000 as "clear funds" to the bank account specified by Mr. Lalvani. 13.8. Mr. Israni s attempt to show that he was ready with the demand drafts amounting to Rs. 3 18 91 000 on 15.07.2008 and 16.07.2008 before the 15 day notice period expired would be of no avail given the obligation placed on Mr. Israni to remit "clear funds" to the bank account provided by Mr. Lalvani. The evidence on record points in the direction that Mr. Israni was aware as to the account where monies had to be remitted since he had done so while remitting amounts in pound sterling equivalent to Rs. 5 00 000 as noticed above when advance payment was made. 13.9. Mr. Israni s attempt to muddy the waters by taking recourse to a ruse that Mr. Lalvani had not furnished him proof of execution and attestation of GPA and SPA must fail as Mr. Lalvani in his notice of default dated 02.07.2008 had in no uncertain terms indicated that he had executed the GPA and the CS(OS) 1995 2008 SPA. This is evident from the following portion of the notice of default dated 02.07.2008. You are fully aware that Our Client has fulfilled all obligations set out in Clause 2 of the Agreement including but not limited to the execution of a general power of attorney and a special power of attorney in terms of Clause 2 of the Agreement and has been awaiting payment from you." 14. Execution in the legal sense to my mind would include attestation. Thus Mr. Israni only to buy time it appears shot off the reply dated 12.07.2008 seeking proof of attestation and execution of GPA and SPA. 14.1. It was only after Mr. Lalvani had issued the notice of termination dated 24.07.2008 that Mr. Israni via a return communication dated 24.07.2008 informed Mr. Lalvani that he had prepared two demand drafts dated 15.07.2008 and 16.07.2008 amounting to Rs. 3 18 91 000 . Thus clearly to my mind Mr. Israni was in breach. 14.2. The possibility that Mr. Israni could establish to the contrary was completely foreclosed by virtue of the stand taken by him in his affidavit dated 31.07.2020 wherein he stated that if he was not able to deposit Rs. 14 50 00 000 on or before 07.08.2020 he would not proceed with the specific performance of the ATS. 14.3. That being said the logical sequitur in law is that even if the transaction falls through on account of the fault of the vendee monies paid as an advance towards sale consideration would have to be refunded to him. In the instant case as noticed above the vendor has a right to retain the money received as an advance. 14.4. Therefore what requires to be seen is whether the amount sought to be retained would be construed in law as reasonable compensation for the breach CS(OS) 1995 2008 committed by the vendee i.e. Mr. Israni or would it in the facts and circumstances of the case be penal 14.5. It is not as if the vendor can retain the entire amount unless he is in a position to show that he suffered an injury on account of the breach which in turn resulted in vendor i.e. Mr. Lalvani suffering damages. A somewhat similar situation arose in Fateh Chand vs. Balkishan Dass 1 SCR 515 where apart from the earnest money of Rs. 1 000 a further sum of Rs. 24 000 paid towards the total consideration agreed to between the parties was sought to be retained on account of the subsistence of the forfeiture clause3. In this behalf the following observations being apposite are extracted hereafter. 7. The Attorney General appearing on behalf of the defendant has not challenged the plaintiff s right to forfeit Rs 1 000 which were expressly named and paid as earnest money. He has however contended that the covenant which gave to the plaintiff the right to forfeit Rs 24 000 out of the amount paid by the defendant was a stipulation in the nature of penalty and the plaintiff can retain that amount or part thereof only if he establishes that in consequence of the breach by the defendant he suffered loss and in the view of the Court the amount or part thereof is reasonable compensation for that loss. We agree with the Attorney General that the amount of Rs 24 000 was not of the nature of earnest money. The agreement expressly provided for payment of Rs 1 000 as earnest money and that amount was paid by the defendant. The amount of Rs 24 000 was to be paid when vacant possession of the land and 3 "…The conditions of the agreement were: 1) I the executant shall deliver the actual possession i.e. complete vacant possession of kothi to the vendee on the 30th March 1949 and the vendee shall have to give another cheque for Rs 25 000 to me: out of the sale price. 2) Then the vendee shall have to get the sale registered by the 1st of June 1949. If on account of any reason the vendee fails to get the said sale deed registered by the 1st June 1949 then this sum of Rs 25 000 mentioned above shall be deemed to be forfeited and the agreement cancelled. Moreover the vendee shall have to deliver back the complete vacant possession of the kothi to me the executant. If due to certain reason any delay takes place on my part in the registration of the sale deed by the 1st June 1949 then I the executant shall be liable to pay a further sum of Rs 25 000 as damages apart from the aforesaid sum of Rs 25 000 to the vendee and the bargain shall be deemed to be cancelled."" CS(OS) 1995 2008 building was delivered and it was expressly referred to as "out of the sale price". If this amount was also to be regarded as earnest money there was no reason why the parties would not have so named it in the agreement of sale. We are unable to agree with the High Court that this amount was paid as security for due performance of the contract. No such case appears to have been made out in the plaint and the finding of the High Court on that point is based on no evidence. It cannot be assumed that because there is a stipulation for forfeiture the amount paid must bear the character of a deposit for due performance of the contract. 8. The claim made by the plaintiff to forfeit the amount of Rs 24 000 may be adjusted in the light of Section 74 of the Indian Contract Act which in its material part provides: When a contract has been broken if a sum is named in the contract as the amount to be paid in case of such breach or if the contract contains any other stipulation by way of penalty the party complaining of the breach is entitled whether or not actual damage or loss is proved to have been caused thereby to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or as the case may be the penalty stipulated for." The section is clearly an attempt to eliminate the sometime elaborate refinements made under the English common law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine pre estimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties: a stipulation in a contract in terrorem is a penalty and the Court refuses to enforce it awarding to the aggrieved party only reasonable compensation. The Indian Legislature has sought to cut across the web of rules and presumptions under the English common law by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach and stipulations by way of penalty." 14.6. Therefore ordinarily Mr. Lalvani would be required in law to repay Rs. 5 00 000 to Mr. Israni till such time he was able to demonstrate that he had suffered an injury on account of Mr. Lalvani’s breach and in turn suffered damages. Damages that Mr. Lalvani can seek in law can only be compensatory in law i.e. reasonable damages even though Clause 5.3 of the ATS allowed him CS(OS) 1995 2008 to retain all that he had received towards sale consideration up until the date of issuance of the notice of termination. 14.7. The difficulty which one is presented with in this case is that the plaintiff sought only one relief which was the relief of specific performance of the ATS. Mr. Lalvani did not seek at any stage an amendment to the plaintand therefore the issue concerning the refund of Rs. 5 00 000 was not brought to fore. 14.8. Therefore Mr. Lalvani at no point would have had the opportunity to lead evidence to show that he had suffered injury and damages to the extent of Rs. 5 00 000 or more. One may have perhaps ignored all this and still ordered refund but for the fact Mr. Israni had taken the position on 09.07.2020 that he would simply not press the suit if he failed to deposit Rs. 14 50 00 000 with the Registry of this Court. As noticed hereinabove the assertion for seeking refund or compensation was slipped in by Mr. Israni via affidavit dated 31.07.2020. 14.9. Therefore looking at the entirety of the facts which includes the period over which Mr. Lalvani had to hold on to the suit property the amount he would have spent over this period towards litigation expenses and the attempt of Mr. Israni to slip in a last minute plea of refund without giving him an opportunity of demonstrating that he had suffered injury and damages I am not inclined to grant this relief to Mr. Israni. Therefore the plea made in this behalf is rejected. 15. This brings me to the last submission which is that whether or not Mr. Israni should be allowed to press his plea for award of compensation damages. Section 21 of the Specific Relief Act 1963In a suit for a specific performance of a contract the plaintiff may also claim compensation for its breach either in addition to or in substitution of such performance. CS(OS) 1995 2008 claim compensation both in addition to or in substitution of specific performance of a contract. 15.1. However subsection of Section 21 makes it clear that no compensation will be awarded under this Section unless the plaintiff has claimed such compensation in his plaint. The proviso to subsectionvests a right in the plaintiff to seek an amendment of the plaint if the relief for compensation is not claimed in the first instance with a corresponding power vested in the Court to allow such amendment at any stage of the proceeding on such terms as those it may consider just. 15.2. Furthermore the explanation states that because the contract has become incapable of specific performance it does not preclude the Court from exercising the jurisdiction conferred by this Section. In the facts of the instant case as noticed above Mr. Israni at no stage sought amendment of the plaint he had only claimed the relief of specific performance. That right was available to Mr. Israni which for whatever reason he chose not to exercise. Mr. Israni 2) If in any such suit the court decides that specific performance ought not to be granted but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach it shall award him such compensation accordingly. 3) If in any such suit the court decides that specific performance ought to be granted but that it is not sufficient to satisfy the justice of the case and that some compensation for breach of the contract should also be made to the plaintiff it shall award him such compensation accordingly. 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. 5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: PROVIDED that where the plaintiff has not claimed any such compensation in the plaint the court shall at any stage of the proceeding allow him to amend the plaint on such terms as may be just for including a claim for such compensation. Explanation: The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this CS(OS) 1995 2008 abandoned his relief for specific performance once he was unable to deposit Rs. 14 50 00 000 with the Registry of this Court. 15.3. Clearly if the amendment for compensation damages was sought the parameters would have to be stricter. However at this stage it is only in the realm of speculation as to how one would have approached the matter if such a plea was raised.1 SCC 647] 15.4. Therefore in my opinion the submission advanced on behalf of Mr. Israni that he should be paid compensation damages in the facts of the instant case is misconceived and is consequently rejected. In any event any relief for compensation damages would require evidence for quantification if nothing else. There is concededly no such evidence on the record as Mr. Israni prosecuted the case on one single plank which was to claim the relief for specific performance. Conclusion: 16. Given the foregoing I find no merit in the case. 17. The suit is accordingly dismissed. Costs will follow the result in the suit. RAJIV SHAKDHER J DECEMBER 11 2020 Click here to check corrigendum if any 5 “16. So far as the proviso to sub sectionis concerned two positions must be 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 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 Section 21 of the Specific Relief Act 1963 and the amendment is one under the proviso to sub section in turn invokes Section 73 of the Indian Contract Act for the principles of quantification and assessment of compensation does not obliterate this CS(OS) 1995 2008 