Court Cannot Rewrite Contract When Vendor Lacks Ownership of the Property: Calcutta High Court Dismisses Appeal for Specific Performance

Calcutta High Court upheld the dismissal of a suit for specific performance of an agreement for sale on the ground that the respondent lacked title to the property. The Division Bench comprising Hon’ble Justice Sabyasachi Bhattacharyya and Hon’ble Justice Uday Kumar observed that enforcing the agreement would require the court to rewrite the contract, which is beyond its jurisdiction. The judgment analyzed key provisions of the Specific Relief Act, 1963, and the Transfer of Property Act, 1882, to hold that the agreement was unenforceable.

"Specific Performance Cannot Be Granted Without Vendor's Ownership"
The dispute revolved around a 1977 agreement between the appellant, Pramod Shroff, and the respondent, Mohan Singh Chopra, for the sale of a flat (Flat No. 61, Shalimar Apartments) and a car parking space. The property was part of a building constructed on land leased for 75 years in 1964.

The appellant had been in possession of the property since 1977 but filed a suit for specific performance only in 2007, alleging that the respondent refused to execute a sale deed. The trial court dismissed the suit in 2017, citing the respondent’s lack of title as a barrier to performing the agreement.

The court held that the suit was filed within the limitation period because the cause of action arose in 2007, when the respondent explicitly refused to perform the agreement.

"Clause 7 of the agreement provided that the sale deed could be executed when called upon by the purchaser. Since the plaintiff first asserted his rights in 2007, the cause of action arose at that time, rendering the suit timely," the court observed.

The appellant argued that the court was bound to grant specific performance as the statutory conditions were satisfied. However, the court clarified that under the unamended Section 20 of the Specific Relief Act, granting specific performance was discretionary.

"Under the pre-amended Section 20, courts were not bound to grant specific performance merely because it was lawful to do so. Such discretion must be exercised judiciously," the court noted.

The court highlighted that the substitution of Section 20 by the 2018 amendment was not applicable, as the case was decided prior to the amendment.

The appellant sought partial specific performance under Section 12 of the Specific Relief Act, claiming that the court could enforce the respondent’s limited rights in the property. The court rejected this plea, stating that the respondent lacked any ownership rights that could be transferred.

"The absence of ownership hits at the very root of the defendant’s ability to perform any part of the agreement. Section 12 is inapplicable when no part of the agreement can be lawfully performed," the court held.

The appellant invoked Section 53-A, claiming protection as he was in possession of the property. The court clarified that Section 53-A provides a defense against eviction but does not establish grounds for specific performance.

"Section 53-A is merely a shield to protect possession and does not justify specific performance in the absence of the vendor’s title," the court remarked.

The court observed that the appellant did not seek damages as an alternative relief, despite being in possession of the property for over three decades.

"The plaintiff, despite enjoying possession of the flat since 1977, failed to claim damages as an alternative relief. This omission renders any discussion on damages academic," the court stated.

The court emphasized that enforcing the agreement would have required it to rewrite the terms of the contract, which was impermissible under the law.

"In the absence of any saleable title, the court cannot create a new agreement or direct execution of a lease deed for the residual period of the original 75 years' lease. One cannot transfer more than what one has," the court explained.

The court also noted that the respondent’s lack of title made it impossible to perform the agreement either in whole or in part.

"The entire agreement hinges on the respondent’s ability to transfer ownership. Without title, no part of the agreement can be performed," the court concluded.

The High Court dismissed the appeal, affirming the trial court’s decision to reject the suit for specific performance. The court held:

"The impugned judgment rightly dismissed the suit on the ground of the respondent’s lack of title. There is no reason or scope to interfere with the trial court’s decision."

Date of Decision: January 21, 2025