The High Court of Kerala has held that a plaintiff is entitled to specific performance of contract only if he sticks to the original terms of the contract. Any variance from the original terms, even if such variance is to the benefit of the defendant, will disentitle him from seeking the discretionary relief of specific performance.
This was made clear by the division bench comprising Justice V Chitambaresh and Justice Satish Ninan, while deciding an appeal by the plaintiff against the decree of the trial court which declined to order specific performance of agreement of sale. As per the original agreement, the offer price of the land was Rs 1 lakh per cent. Later, the plaintiff offered a higher price of Rs 1.75 lakh per cent. The court found that the subsequent offer resulted in variation of the original contract and that the plaintiff could not seek specific performance of original contract in such circumstances. It was observed as follows: “The plaintiff by floating a fresh offer at an enhanced rate has practically given up his original offer embodied in Ext.A2 agreement and has waived his right to stick on to the original terms agreed upon. The conduct of the plaintiff in issuing Ext.B1 letter to the first defendant offering a higher price for the property is certainly at variance with the follow up action intended on Ext.A2 agreement. Such conduct and circumstance could be put forward as a successful defence in a suit for specific performance [See: Ayissabi v. Gopala Konar (1988 (2) KLT 282)]. The plaintiff will be entitled to specific performance of Ext.A2 agreement only if he sticks on to its terms throughout as is enjoined under Section 16(c) of the Specific Relief Act, 1963. The fact that the plaintiff has floated an offer which is more beneficial to the first defendant and that it is not in derogation of the terms originally agreed is of no avail.”
Hence, appeal was dismissed, confirming the decree of the trial court which had directed the return of advance money and had created a charge to that effect on the property.