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WHEN THERE WAS NO AGREEMENT BETWEEN THE PARTIES REGARDING ESSENTIAL TERMS OF THE AGREEMENT – NO CONSENSUS AD-IDEM AS SUCH NO VALID CONTRACT TO BE ENFORCED 1990 SC

JUSTICE SAIKIA, K.N. and JUSTICE RANGNATHAN, S. of Supreme Court in the case of Smt. Mayawanti vs Smt. Kaushalya Devi Reported in 1990 SCR (2) 350, 1990 SCC (3) 1 :- The specific performance of a contract is the actual execution of the contract according to its stipula- tions and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipula- tions and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of Course, on the plaintiff. If the stipulations and terms are uncertain and the parties are not ad idem there can be no specific performance, for there was no contract at all. Where there are negotiations, the Court has to determine at what point, if at all, the parties have reached agree- ment. Negotiations thereafter would also be material if the agreement is rescinded. In the instant case the defence of there having not been a contract for lack of consensus ad idem was available to the defendant. The jurisdiction of the Court in specific performance is discretionary. When a promise is made in an alternative form and one alternative is impossible to perform, the question whether the promiser' is bound to perform the other or is altogether excused depends on the intention of the parties to he ascer- tained from the nature and terms of the contract and the circumstances of the particular case. The expression 'otherwise pay back the advance and compensation in the same amount' is capable of being inter- preted as payment of the amount as alternative to perform- ance. Of course the amount advanced and the compensation was stipulated to he the same amount. That, however, would not effect the real character of the promise.

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