C. Doraiswamy Mudali vs Thangavelu Mudaliar and Others

The judgment of the lower Court dismissing plaintiff''s suit is based on a wholly erroneous view of law. The learned Judge holds that the fact that

the contract was broken by defendant long before the date of the assignment in plaintiff''s favour

deprives him of the normal right of an assignee of a contract for specific performance to sue for specific performance, and reduces his legal right to a ''mere right to sue," which is not transferable. The ruling in Venkateswara Aiyar v. Raman Nambudri [1916] 3 M.L.W. 435 which the learned Judge quotes, is, as correctly quoted by him to the opposite effect, viz.,

that the term a "mere right to sue" is only applicable where the specific enforcement of the contract cannot be obtained.

We can hardly conceive that the learned Judge meant to lay down that the mere refusal, however, often it may be repeated, by a party to perform a contract or a mere denial of the existence of the contract deprives the other party of the right to sue for specific performance. It is that very refusal or denial which gives the other party his cause of action for a suit for specific performance. The learned Judge does not hold that a right to specific performance is not a transferable right. Section 23 (6), Specific Relief Act, makes it clear that such a right is transferable. Plaintiff, therefore, has the rights of his transferrer, viz., the right to sue, within the time allowed by law, for specific performance, or for damages. We reverse the decree of the lower Court and direct that the suit be remanded for further hearing. Costs upto date in the lower Court will abide the result. Appellant will get his costs in this Court. Appellant will get refund of Court-fee on the appeal.