Devan Ramachandran, J. - If there will be one case, the facts to which the maxims commodum ex injuria sua non habere debet (convenience cannot accrue to a party from his own wrong) and nullus commodum capere potest de injuria sua propria (no one can obtain an advantage of his own) may be most suitable, it may well be this appeal.

2. The defence built by a defendant in a suit, from which this appeal arises, in answer to a claim made by the plaintiff for specific performance, of an agreement between them to transfer the formers equity shares in a private limited company, is certainly ingenuous and perilously bordering on sheer guile. We say so because the facts involved herein presents the story of a rather bewildering retort, to the claim of the plaintiff for specific performance of the agreement, by the defendant underpinning it on the counter allegation that the agreement is illegal and against public policy but incredulously conceding all the while that he had executed the same knowing it to be contra legum and even contra bono mores, thus perming himself with the legal excuse in not enforcing it and opposing it when it is sought to be enforced against him.

3. We will now deal with the most un-expendable facts involved in this case which will require our pointed consideration.

4. This appeal has been preferred by the first defendant in O.S.No. 128 of 2011 on the files of the Sub Court, Thiruvalla. The suit was laid by the 1st respondent herein (who will hereinafter be referred to as the plaintiff) against the appellant herein and four others, arrayed as defendants 2 to 5, who are stated to be the only shareholders and directors of a private limited company by name Cavunal Rubber Estate Private Limited, which was initially incorporated under the Travancore Companies Act, 1114 and which subsequently become a deemed company under the provisions of the Indian Companies Act, 1956.

5. According to the plaint averments, the companys registered office is at Thiruvalla and the plaintiff alleges that the affairs of the company was being mismanaged by its directors due to certain internal dissections among them. The plaintiff assets that, in order to find a quietus of the disputes, all the shareholders of the company, who are also its directors, namely, the appellant and respondents 2 to 5 herein, agreed between themselves to cause all the shares of the company to be transferred to a third party, thus giving up their ownership and control over the company as well as its only asset, namely, a rubber estate comprised of 57.5 Acres at Perunad Village in Ranni Taluk. As per the plaintiff, in furtherance of their intention to sell their shares and thereby sell the company itself, the appellant and respondents 2 to 5 had approached him, with whom he had thus entered into an agreement dated 10.6.2009. This agreement has been produced and marked on record as Ext. A1.

6. As per the terms of this agreement, the shareholders of the company, namely the appellant and respondents 2 to 5 herein, agreed to sell all their shares in the company, ie., 100% of its shares, to the plaintiff for a consolidated total consideration of Rs. 3,40,00,000/- (Rupees Three Crores Fourty Lakhs only). The agreement records that the plaintiff namely the vendee, had paid an amount of Rs. 1,50,00,000/- (Rupees One Crore Fifty Lakhs only) as advance, which was tendered by him to the appellant and respondents 2 to 5, by way of account payee demand drafts, issued from the Bank of Baroda, Pathanamthitta Branch for Rs. 1,10,00,000/- and the balance amount of Rs. 40,00,000/- in cash. The agreement also acknowledges that the vendors, namely the appellant and respondents 2 to 5 herein, had received their share of the advance amount, in equal proportion, namely Rs. 30,00,000/- each.

7. The agreement expressly covenants that since the company was not functioning well from 2003 and since there were internal dissensions among the shareholders they have decided to sell all their shares and to give up their claims over the company so as to resolve the long pending disputes between them. The appellant and respondents 2 to 5 also categorically confirm in the agreement that there are no liabilities, debts, dues, etc. outstanding to the debit of the company and that they will affect transfer of whole of their respective shares in the company to the first respondent herein or to his nominated person after complying with all the required formalities. Presumably because the first respondent had paid a substantial amount as advance, the agreement mentions that the appellant and respondents 2 to 5 have put him in possession of the only property of the company, namely, the estate referred to above. The agreement mandates that the plaintiff comply with his obligations under the agreement within a period of two months and that on such compliance, the vendors will handover all the documents, registration certificates, title documents, etc., with respect to the company and its property to him along with the transfer forms of the shares.

8. The plaintiff avers in the plaint that in spite of the specific stipulations in the agreement and that even though he had complied with all his obligations under it, the appellant refused to transfer his shares in his favour, even though respondents 2 to 5 honoured their agreement promises, thus transferring their respective shares in his favour. The relevant plaint averments with respect to the plaintiffs compliance of the conditions in the agreement is contained in paragraph 11 of it which we think requires to be read in whole and is, therefore, extracted as under:

"11. Accordingly the defendants have informed the plaintiff that the meeting of board directors was scheduled to be convened by 4-8-2009 to complete the transfer of the shares by receiving the balance sale consideration. Then on the advice of the company Secretary all necessary arrangement were made by preparing necessary transfer forms, resignation letters of the directors etc. The plaintiff has got ready with necessary funds i.e. Rs. 38,00,000/- (Rupees Thirty Eight Lakhs only) for each defendants i.e. in total Rs. 1,90,00,000/-(Rupees One crores Ninety lakhs only) as the balance sale consideration. The meeting was scheduled to be held at 2 P.M. On 4-8-2009 at the office of the company at Thiruvalla. As arranged the plaintiff and all the defendants except the 1st defendant were present. When he was contacted over phone by the 5th defendant, it was told that, the 1st defendant would arrive by 9 p.m. Then all the other share holders/directors have taken necessary decision to transfer the entire shares of the defendants 2 to 5 and all required papers were signed and shares were transferred. All the three director board members i.e. defendants 3 to 5 have submitted their resignations from the director board. The 2nd defendant has not submitted his resignation on the request of the plaintiff, as his continuance in that post is required for some more time. That apart the shares of these defendants 2 to 5 were transferred in the name of the plaintiff and his son and brother Rejo Thomas and Jacob Thomas respectively as on the direction of the plaintiff. Then necessary resolutions were passed by the director board before the resignation of D3 to 5, to appoint the plaintiff, Rejo Thomas and Jacob Thomas as additional directors. Necessary resolution was passed and all such resolutions were acted upon. The defendants 2 to 5 have received their respective balance sale consideration of Rs. 38,00,000/- (Rupees Thirty Eight Lakhs only) each from the plaintiff. The demand draft for Rs. 38,00,000/- which was taken in the name of 1st defendant in order to pay the balance sale consideration and all necessary forms and papers to be signed by him were handed over to the 5th defendant to get it signed as he had informed that he will do that on the next day, as he could not reach in the meeting up to 10 p.m. On next day morning, though the 5th defendant approached the 1st defendant, he took all the necessary papers with him and asked to wait for some more days, as he required some time more to study the matter. Later he had returned the demand draft to the plaintiff, through the 5th defendant. Thus the 1st defendant failed to perform his part of the contract as agreed upon. Whereas all the other defendants have completely performed their part of the contract, by transferring their entire respective shares to the plaintiff and to his nominees after receiving balance sale consideration."

9. According to the plaintiff, he had, after obtaining possession of the property in such manner from the company, made certain improvements thereon and had invested substantially in its improvement. The plaintiff thereafter predicates that even though all the other shareholders had transferred their respective shares in his favour, the appellant herein refused to do so even though the balance sale consideration was tendered to him. It is on those allegations that the suit was laid and the Court below took the suit to trial and marked Ext. A1 to A8 on the side of the plaintiff and examined PW1, the plaintiff himself. On the side of the defendants Ext. B1 document was marked and DW1 was examined as their witness. After an assessment of the pleadings on record and the evidence gathered, the Court below decreed the suit and directed the appellant herein/the first defendant to transfer his entire shares, in Cavunal Rubber Estate Private Limited, on receipt of the balance sale consideration within a period of three months. The court below also ordered that should the appellant refuse to transfer his shares in the company, the plaintiff will be entitled to get the decree executed through court by depositing the balance sale consideration of Rs. 38,00,000/ - and to realize the costs from him. It is against this judgment and decree that the appellant has filed this appeal.

10. We have heard the learned Senior counsel Sri. R.D. Shenoy assisted by Sri. Vinod S. Bhat, learned counsel appearing for the appellant and the learned Senior counsel Sri. Joseph Kodianthara, assisted by Sri. Shaj, learned counsel appearing for the first defendant. There is no representation or appearance on behalf of respondents 2 to 5.

11. The hypotasis of the defence mounted by the appellant, against the claim for enforcement of the agreement by the plaintiff, are broadly on five grounds. Sri. R.D. Shenoy, the learned Senior counsel appearing for the appellant has enumerated these grounds in a very lucid manner and we think it will be easy for our consideration of the issues by first recording the grounds, as impelled by Sri. R.D. Shenoy and then to deal with it in detail.

12. The learned Senior counsel contends that: a) Ext. A1 agreement does not obtain to itself the essential agreements of an agreement of sale and, therefore, that it is vitiated by uncertainty thus making it incapable of specific performance; b) Clause 13 of the agreement which permits the defendants to terminate the contract at any point of time, makes it a determinable contract, thus incapable of enforcement specifically under the provisions of section 14(1)(c) of the Specific Relief Act; c) Ext. A1 agreement is founded on an illegal object which is against public policy and therefore, incapably of being enforced on the doctrine of ex turpi causa non oritur actio; d) A suit for specific performance has certain special incidents and ingredients and that in the absence of such, the courts will not be justified in travelling an extra mile to decree specific performance but will only be justified in dismissing it under section 20 of the Specific Relief Act; and e) Since the plaintiff has not made an alternative prayer in the suit for return of the advance paid and since the breach of the agreement is at his hands, this court will not be justified in directing that the amounts with the appellant, obtained by him as his share of the advance, be ordered to be returned.

13. Of the above broad facets, we are now called upon to consider, we think it necessary to consider the question as to whether the agreement is illegal or whether it is determinable as the preliminary ones. This is because if the agreement is found to be either of this, then we would not be required to make any further examination of the other issues because it is obvious that an illegal agreement cannot be specifically enforced and a determinable contract cannot be ordered to be specifically performed by any of the parties.

14. In support and strength of the submission that the contract has an illegal purpose behind it, the learned Senior counsel, Sri. R.D.Shenoy, calls our attention to certain clauses in Ext. A1 agreement. He says that it is clear from the covenants in page 2 of the said agreement that the only intention of the vendee/the plaintiff was to purchase the rubber estate of the company and that for such purpose he had approached the defendants. According to the learned Senior counsel, the vendors/the appellant and respondents 2 to 5 herein had agreed to sell the land but that the vendee/the plaintiff suggested that he will purchase the whole of the shares of the company so as to avoid payment of the stamp duty which will be attracted if the transfer of the property is shown as a sale. The specific covenant that the learned Senior counsel refers to is as under:

"And Whereas The Vendee is in search to purchase of a rubber estate within their district and being attracted to purchase the said scheduled property of rubber estate of the company by purchasing the entire shares of the company enters into negotiation with the vendors/shareholders of the company.

And Whereas the vendors have agreed to sell to and the Vendee has agreed to purchase the entire share of the company and their by the schedule property upon the following terms and conditions and for the consideration hereinafter stated."

It is certainly inescapable from a reading of the above covenant that the initial intention of the plaintiff was to buy the rubber estate without being involved in the affairs of the company. In explanation of the change of plan of the plaintiff to acquire the shares of the company, Sri. Joseph Kodianthara, learned Senior counsel submits that one relevant and important factor in this case is that the company had only one asset, namely the rubber estate in question. He says that, therefore, if the rubber estate was purchased by his client without touching the shares of the company, the company would have become a shell company without any assets left of its own. He says that it was because of this singular reason that the parties decided that it will be better, in the interests of the company also, that the shares are transferred in favour of the plaintiff so that he would obtain full control of the company which would then continue to own the rubber estate.

15. It is certainly probable and possible that this was the explicit intention which lead to the agreement, because we see that the appellant himself has confirmed these covenants in the agreement, while subscribing to the same and he was, therefore, aware that what was being achieved was not transfer of the immovable property but transfer of the shares of the company. It is now well accepted that what is not expressly inhibited and prohibited in law can be pursued. The law does not inhibit transfer of shares of the company thereby obtaining control over its assets and what is concededly agreed by the parties is that the plaintiff would become the sole shareholder in the company, thereby being in full control of the immovable property owned by it. We cannot find any illegality in this, even though we heard the learned Senior counsel, Sri. R.D. Shenoy, submitting that what has been achieved by the parties through this exercise is to cheat the Revenue of the applicable stamp duty. This submission looks to be very attractive at the first instance but we must be cognizant that none of the parties have raised such a plea or laid evidence to this effect in the court below. We do not know what is the real value of the rubber estate; the appellant has conspicuously chosen to be silent as this. Nothing has been placed to show the value of stamp duty that will be attracted if it is sold through a sale document, and therefore it becomes nearly impossible for us to assess whether the exercise intended through the agreement would cheat the Revenue. We say this because even by the exercise, as governed by Ext. A1 agreement, the parties would obviously be under the rigour of the provisions relating to capital gain, Income Tax Act and such other revenue obligations and in the absence of any evidence to show that there has been any deficit or loss to the Revenue, on account of the alternative arrangement between the parties, we do not think that it would be justified in concluding that Ext. A1 is illegal.

16. Coming to the question whether the contract is determinable, we have to essentially see the provisions of section 14(1) of the Specific Relief Act. Under the provisions of that section, certain contracts are deemed not specifically enforceable, one of which is a contract which in its nature is determinable.

17. The question thus before us is whether this contract is determinable. Before we answer this, we deem it necessary to understand clearly what is meant by determinable contracts. In the now repealed Specific Performance Act, 1877, section 21(d) stipulated that a contract, which in its nature is revokable, cannot be enforced to unenforceable contracts. The provision of the old Act corresponds to section 14(1) (c) of the Specific Relief Act, 1963 (which will, hereinafter be referred to as the "Act" for convenience), the only difference between the two being that the word revokable has been substituted with the word determinable. This was done because the word revokable was inaccurate and it was felt that a more accurate word for it be substituted. Therefore, it is indubitable that a contract which in its nature is revokable or determinable, as described in the provisions of the sections afore referred, is definitely not enforceable through specific performance. For a contract to become determinable, it has to be first shown by the defendant that its clauses and terms are such that it would become possible for either of the parties to determine and terminate it without assigning any reason. The words used in section 14(1)(c) is "inherently determinable". The effect of the use of the word "inherently" in the section is to make it unambiguously clear that a contract which can be terminated by either of the parties on their own will without any further reason and without having to show any cause, would ones are inherently determinable. However, if an agreement is shown to be determinable at the happening of an event or on the occurrence of a certain exigency, then it is ineluctable that on such event or exigency happening or occurring alone that the contract would stand determined. In order to see if a particular contract is inherently determinable or otherwise, we have to first see whether the parties to the said contract have the right to determine it or to terminate it on their own without the junction of any other party and without assigning any reason. This is akin to a partnership at will, where one of the partners can notify the others of his intention not to continue in the said firm and the partnership itself then dissolves. The analogy we think is appropriate because a contract, to be inherently determinable, will have to specifically provide competence to the parties to it to terminate it without assigning any reason and merely by indicating that he does not intend to comply with the same.

18. That being said, we will have to examine whether Ext. A1 agreement would be in the nature of a determinable contract. The learned Senior counsel, Sri. R.D. Shenoy garners strength to his submissions by pointing to Clause 13 of the said agreement. Since our examination on this issue would certainly be within the four comers of this particular clause, we think it will be necessary to extract it for full reading and we do so as under.

"13. It is also agreed by the Vendors/shares that of for any reason (not expected in the normal cause) this agreement could not be completed due to any of the reasons breach or default of the Vendors they shall repay the advance paid amount of Rs. 1,50,00,000/- (Rupees One Crores Fifty Lakhs only) with 12% interest per annum less the value of Rubber Trees sold by the vendee and in failure the vendee will be free to realize such amounts from the assets of the company mainly from the schedule property."

19. It is obvious from a reading of clause 13 of the agreement that the vendors namely the appellant and respondents 2 to 5 herein have agreed that if, for any reason, which is not expected in the normal course, the agreement cannot be completed due to reasons of breach or default on their side, they will repay the advance amount of Rs. 1,50,00,000/- with 12% interest, less the value of the rubber trees sold by the first respondent herein.

20. Can we say, we asked ourselves whether this would be in the nature of a determinable contract. It is obvious from a reading of the clause that this does not give any of the parties a right to determine the contract on their own without assigning reasons. On the contrary, the clause is worded in such a manner that if there is any breach on the side of the vendors, then alone the contract will stand determined and too on them making payment of the advance amount with 12% interest.

21. We fail to understand how this clause would make Ext. A1 agreement a determinable contract and we are of the view that contrario sensu, this clause operates almost like an In Terrorem clause which is intended to ensure that the vendors do not renege for their part of the obligations in the contract. This becomes further clear because of the words "not expected in normal course" shown in the bracket in the said clause. This luculently would demonstrate that the vendors had no intention of resiling from the contract in normal clause but that if at all they were forced to cause any breach or violation of the condition, on account of reasons not attributable to them, even then their obligation would only be confined to pay Rs. 1,50,00,000/ - along with interest. This is evidently intended to ensure that the vendors perform their obligations within time and in the manner shown in the agreement and we, therefore, cannot find even for a moment that this would make the agreement itself determinable. We find otherwise and we are of the view that clause 13 not only in the agreement not determinable but it imposes an obligation on the vendors to ensure that the agreement is not violated for reasons that are normally available to them.

22. When the above dealt two contentions are found against the appellant, we will now begin the examination of the contents of the agreement as well as the pleadings and the evidence on record on its merits, to verify whether the court below was wrong in ordering specific performance of the agreement.

23. One issue that engaged our mind, even when the hearing of this matter commenced is whether an agreement to transfer shares in a company could be specifically enforced in view of the provisions of section 10 of the Specific Relief Act. This suspicion arose in our mind because in chapter 2 of the, which contain section 10, it is provided that specific performance of a contract to transfer movable property is enforceable only where the property is not an ordinary article of commerce or is of special value or interest of the plaintiff or consists of goods which are not easily obtainable in the market. Our suspicion was kindled by the accepted fact that equity or shares in a company are not immovable property but are in the nature of movable property. Therefore, initially we had a doubt whether it would be available to the appellant herein to contend that Ext. A1 cannot be enforced, because it involves movable property. We are relieved that we did not have to labour much on this because Sri. Joseph Kodianthara, learned Senior counsel appearing for the first defendant brought to our notice the judgment of the Honourable Supreme Court of India in M.S. Madhusoodhanan and Another v. Kerala Kaumudi Pvt. Ltd. and Others, AIR 2004 SC 909 [LQ/SC/2003/734] : 2003 ICO 891 and he invited our attention to paragraphs 138 and 139 thereof which reads as under:

"138. That decision must be understood and read after enunciating certain basic principles relating to the transfer of shares and in the background of earlier decisions on the subject it is settled law that shares are movable properties and are transferable. As far as private companies like Kerala Kaumudi are concerned, the Articles of association restrict the shareholders right to transfer shares and prohibit any invitations to the public to subscribe for any shares in, or debentures of, the company. This is how a "private company" is now defined in Section 13(1) (iii) of the Companies Act, 1956 and how it was defined in Section 2(13) of the 1913 Act.

139. Subject to this restriction a holder of shares in a private company may agree to sell his shares to a person of his choice. Such agreements are specifically enforceable under section 10 of the Specific Relief Act, 1963, which corresponds to section 12 of the Specific Relief Act, 1877. The section provides that specific performance of such contracts may be enforced when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done, or when the act agreed to be done in such that compensation in money for its non-performance would not afford adequate relief. In the case of a contract to transfer movable property, normally specific performance is not granted except in circumstances specified in the Explanation to Section 10. One of the exceptions is where the property is "of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market". It has been held by a long line of authority that shares in a private limited company would come within the phrase "not easily obtainable in the market" (See: Jainarain Ram Lundia v. Surajmull Sagarmull and Others, AIR (36) 1949 FC 211, 218 [LQ/SC/1949/18] : 1949 ICO 7. The Privy Council in the Bank of India Ltd. v. J.A.H. Chinoy, AIR 1950 PC 90 [LQ/PC/1949/93] : 1949 ICO 110 said: "It is also the opinion of the Board that, having regard to the nature of the company and the limited market for its shares, damages would not be an adequate remedy" specific performance of a contract for transfers of shares in a private limited company could be granted."

Thus, the declaration of law by the Honourable Supreme Court is that shares are movable properties, which are transferable and that they would also be in the species of property which is not an ordinary article of commerce, which has special value to the plaintiff because it is not easily obtainable in the market. This judgment answers our suspicion and therefore, we move on to the next line of enquiry as to whether Ext. A1 agreement can, on the facts of this case, be enforced in law.

24. This brings us to the question as to whether the agreement in question, namely Ext. A1, has the necessary and essential ingredients of an agreement capable of specific performance. The learned Senior counsel, Sri. R.D. Shenoy makes vehement submissions, referring to the authority on this issue, namely, Treatise on Specific Performance of Contracts by Rt. Hon. Sir Edward Fry [Sixth Edition, Ashford Press Publishing 1985]. He draws our attention to paragraph 341 of the said authority and says that the competence for enforcement of an agreement can be concluded only if there is certainty regarding (i) subject matter (ii) parties to the agreement (iii) the price and (iv) the other terms. He contends, drawing power from the said treatise, that every valid contract must contain a description of the subject matter, that its terms must be certain and that the court must be in a position to understand and ascertain what it is. The learned Senior counsel asserts that in this case that these requisites are totally missing. According to him, Ext. A1 agreement only says that the vendor shall pay an amount of Rs. 3,40,00,000/- as price for the 100% of the shares held by five people. The learned Senior counsel contends that the stipulations in the agreement does not say what are the actual shares of each of the shareholders so as to enable the vendor to pay them off in proportion of their shares. He says that this is because the terms in Ext. A1 agreement is to the effect that the shareholders have agreed to affect full transfer of their "respective entire shares" (sic) in the company in favour of the first respondent (this is in paragraph 2 of the agreement); that the vendors agree that they will not have any interest or right in the company on completion of the agreement and by transfer of their "respective and entire shares" in the company (this is in paragraph 5 of the agreement); and that the vendors have agreed to affect transfer of their "respective entire shares" in the company to the vendee on the happening of the arrangement contained in the agreement (sic) (this is in paragraph 10 of the said agreement).

25. The effect of the submissions made before us is that when the agreement does not specify the respective proportion of the shareholding of the appellant and respondents 2 to 5 in the company, the agreement itself is uncertain. According to the learned Senior Counsel, when the agreement is uncertain with regard to the subject matter involved it cannot be in any manner enforced. He avouches that the plaintiff had a duty to ensure that the agreement was certain in its terms and that by not doing so, he is hit by the doctrine of caveat emptor because he did not exercise due diligence while entering into Ext. A1 agreement.

26. It is in this context that we began this judgment by saying that the doctrine nullus commodum capere potest de injuria sua propria that a person cannot obtain advantage of his own guilt, would apply in this case. We say this because it is obvious that when the agreement was entered into, the appellant along with respondents 2 to 5, had stipulated that the entire 100% shares of the company will be transferred to the vendor/the plaintiff. It was also concurred that the total amount of consideration will only be Rs. 3,40,00,000/-, whatever be the nature of the shareholding. In other words, what was intended by the shareholders was that they would get Rs. 3,40,00,000/-, being the final value for the 100% shares of the company, and that their respective shares would then have to be identified and the amount proportionately distributed among themselves. This is the only way in which Ext. A1 would operate in its ambit. The question is whether the vendor should have known that the shares of the various shareholders are at variance and whether he was under an obligation to ensure that each of the shares are specifically mentioned in the agreement. Normally, the vendor should have ensured that this was stipulated in the agreement. However, this is a case where certain special circumstances have been noticed. For the first, there was certain disputes between the shareholders, which had led to a company petition being filed before the Company Law Board, Chennai. The allegations in the said petition, which has been produced and recorded as Ext. B1, is that the shareholding of the five shareholders, namely, the appellant and respondents 2 to 5 herein, were more or less equal, until the appellant and the fifth respondent allegedly collaborated in creating documents to show that their shares have been augmented by over 2 or 3 times. The company petition prayed that such illegal allotment of shares, if any, made in favour of the appellant and the fifth respondent be cancelled and it was pending such dispute that they had agreed to subscribe their signatures to Ext. A1 agreement. There can be no doubt about this because, the covenants in Ext. A1 would clearly speak about this and say that the reason why the shareholders agreed to the sale of the 100% shares of the company was to have a resolution of the disputes between them.

27. In fact, after making such covenants in the contract, they also specifically wrote in clause 16 as under:

"16. It is also made believed by the Vendors that no cases in connection with the company or with related the schedule property are pending other that the case pending in the Company Law Board, Chennai between the Vendors shareholders and if further agreed that the Vendors shall withdraw that case and make many arrangements to close that proceedings before transfer."

When clause 16 of the agreement as above, obligates the vendors as a whole to have the case in the Company Law Board withdrawn or settled or compromised, it normally would only mean that there were no subsisting disputes between them at the time when Ext. A1 was executed. However, Sri. R.D. Shenoy, learned Senior counsel submits, interpreting this clause, that what the shareholders intended was that the petition before the Company Law Board, namely, Ext. B1, would be withdrawn by respondents 2, 3 and 4 herein against the appellant and the fifth respondent and that this could only mean that they had agreed to their augmented shares. On such submission, learned Senior counsel maintain that his client is entitled to 771 shares out of 1880 shares in the company. This submission, of course, takes cue from the averments in paragraph 13 of the written statement filed by the appellant before the court below. This submission would have been certainly worthy of examination provided the appellant was able to even at least tell us, in support of his submission, as to how he makes this assertion. It is true that he makes a bald assertion in the written statement, which has been carried in submissions before this court also, that he owns 771 shares in the company, but nothing has been placed on record, except Ext. B1 itself which, he says, is an admission of respondents 2 to 5 herein that he holds that many shares in the company.

28. We see that the court below has made pointed assessment of these submissions and assertions and found that in the absence of anything to the contrary it has to be presumed that the shareholding of the defendants, namely, the appellant and respondents 2 to 5 herein, were more or less equal and that they had agreed in Ext. A1 in order to have their disputes resolved, to maintain such status quo and to accept the sale consideration in more or less equal proportion. One particular circumstance that fortifies this conclusion is the fact that when Rs. 1,50,00,000/- was paid by the plaintiff as advance, it was admittedly distributed among the appellant and respondents 2 to 5 in equal shares, indicating that he had also conceded that his shareholding in the company is only equal and not in variance to the others. To add to this the fact that the fifth respondent herein, Sri. Binu Zacharia, whose augmented shares had also been challenged in Ext. B1 before the Company Law Board, had conceded to have his shares confined to the original shareholding and to accept only a proportionate amount out of the sale consideration paid by the vendor/the first respondent herein.

29. Sri. Joseph Kodianthara, learned Senior Counsel says that the plaintiff had filed the suit after paying off the proportionate balance consideration to all the other shareholders. He adds that the manner in which it was paid and the reasons which compelled him to do so is explained in paragraph 11 of the plaint, which has been extracted earlier in paragraph 8 of this judgment. According to him, pursuant to Ext. A1 agreement, a meeting of the Board of Directors was scheduled on 4.8.2009 to complete the transfer of shares on which day he tendered the balance payment of Rs. 1,90,00,000/- by offering 5 demand drafts for equal amounts to each of the shareholders namely the appellant and respondents 2 to 5 herein. He says that except the appellant herein, all the others accepted the amount and caused necessary documents for transfer of their respective shares to be executed in his favour, but that the appellant refused to perform his part of the contract constraining the plaintiff to file the suit. When the above submissions were being made by Sri. Joseph Kodianthara on behalf of the plaintiff, Sri. R.D. Shenoy, learned Senior counsel appearing for the appellant raises a contention regarding the maintainability of the suit against the appellant with pointed reference to the nature and character of Ext. A1 agreement. According to him, in Ext. A1 agreement, several promises are made by more than one person and he says that since each of these promises are several and distinct, Ext. A1 should be construed as imposing a several liability on each of the covenantors.

30. Sri. R.D. Shenoy then goes on to submit that since the interest of each of the covenantors in Ext. A1, namely, the appellant and respondents 2 to 5, being several, the enforcement of the agreement also should be several and therefore, that his client would be justified in opposing enforceability of the agreement against him even though the others have accepted it. The contention is specific that since Ext. A1 records distinct and several promises and since it imposes different obligations as far as the covenantors are concerned, its enforcement should also be several and specific against each of them. This submission, of course, is based on the stipulations contained in the agreement which provides that each of the shareholders will transfer their respective shares in the company. According to the learned senior counsel, each shareholder has distinct and separate shareholding in the company and therefore, that the obligation to transfer their respective shares can only be construed to be several and distinct obligations under the contract. This submission, we must concede is extremely ingenuous and we have, therefore, read Ext. A1 more than once to gauge its worth and to assess if it would find sustenance in law, tested within the parameters of the factual factors available in this case.

31. There is no doubt that Ext. A1 agreement speaks about transfer of shares by each of the covenantors. However, it cannot be lost sight that what is intended in the agreement is that 100% of the shares of the company, which means 100% of shares of each of the shareholders, would be transferred to the plaintiff for a fixed price of Rs. 3,40,00,000/-. It is pertinent that the amount of Rs. 3,40,00,000/- has not been separately shown in the proportion to be paid to the shareholders. The covenant in the agreement is that the vendee shall pay Rs. 3,40,00,000/- to the vendors jointly and that on such receipt by the vendors, they will transfer their respective shares in the company. The question, therefore, which begs answer is whether this would operate to make the agreement several in the manner that the learned senior counsel now asserts.

32. There is no doubt that for a contract to be several, the obligations and promises made also ought to be several. If the covenantors of the contract agree to a joint promise and then bind themselves to an obligation which is also common, then the contract cannot be several even though each of them would be required to perform some part of the contract as a component of the composite.

33. In this case, what we see from the factual circumstances is that the payment of consideration was to be made jointly to the appellant and respondents 2 to 5, whereas, each of them were obligated to transfer, by executing transfer documents/their respective shares in the shareholding of the company. What was expected of them, as per Ext. A1 agreement, after receipt of the total sale consideration, was only to execute transfer documents with respect to their respective shares but this cannot mean that their contractual obligations are several in nature, as has been now contended by Sri. R.D. Shenoy. Their role, as transferor of the shares, is only to execute the relevant documents and hand it over to the vendee and since they hold shares in the company individually, such documents also will have to be executed individually and can never be done jointly. Merely because of this, we cannot find favour with the submission that the agreement itself is several or that the obligations under it are several. Viewed from that angle, even though the suit had been filed with all the shareholders on the party array, thus entitling each of them to raise contentions even against each other if they had subsisting disputes among themselves, the fact that they had chosen to concede to the contentions of the plaintiff by not filing their written statements, can only lead to the ineludible inference, at least as regards respondents 2 to 5 herein, that they had agreed to the covenants in Ext. A1 agreement and had executed transfer documents with respect to their shares in favour of the vendee. As regards the appellant herein is concerned, his contention is that his obligation under Ext. A1 is distinct from the others and, therefore, that when that part of the agreement is sought to be enforced against him, it being a several contract, he would be justified in contesting it on the ground that there is uncertainty in the terms of the contract.

34. In continuation of the defence against performance of Ext. A1, Sri. R.D. Shenoy, learned senior counsel avouches to the "uncertainty" in the agreement by pointing out that the respective shares of the shareholders are not specifically mentioned therein. As we have already indicted above, the agreement says that each of the shareholder shall part with 100% of their shares. Therefore, there is certainty with respect to the percentile of their holding but there is no mention regarding the actual numbers of the shares held by them. It is this lacuna in the agreement that is now sought to be taken advantage of by the appellant by asserting that the agreement is uncertain. But at the same breath, he admits that he had entered into the contract with full volition and that he had chosen not to mention the exact numbers of shares held by him in the agreement even while agreeing to transfer 100% of his shares. This can only mean, as we have said in the opening paragraphs of this judgment, that the intention of the appellant appears to prearm himself with the defence against the enforceability of the contract on the ground of uncertainness even though he is one of the authors of the agreement and he had signed the same fully knowing the consequences thereof. This is why the doctrine of Nullus commodum capere potest de injuria sua propria and Commodum Ex Injuria Sua Nemo Habere Debet would apply in all its fours in this case. We are sure that the appellant cannot be allowed to take advantage of something that he engineered and authored and he cannot be allowed to take convenience of a lacuna that he was also responsible for it in the first place.

35. We are also guided by legal reasoning and logic to believe that in cases like this it would not be even proper that we allow the appellant to build his defence on the above lines, applying the doctrine of Nemo allegans suam turpitudinem audiendus est, which is a rule of equity that no one can be heard who invokes his own fault. When we shared this opinion of ours with Sri. R.D. Shenoy, he tried to persuade us to the contrary, referring to Cheshire on Law of Contract, asserting that tacit acquiescence in the self deception of the plaintiff would create no legal liability, unless it is due to active misrepresentation or to misleading conduct on the part of the appellant.

36. The basis of the above submission obviously is that it was the plaintiff who entered into this contract with his eyes open and, therefore, that the concept of caveat emptor would apply against him. The learned senior counsel appear to say that even though the appellant was aware of the illegality of the contract, he had only tacitly acquiesced it because the plaintiff was in error by self deception, which would not be a ground to create any legal liability against the appellant.

37. This is an extremely clever argument, no doubt, but viewed from the inviolable imperatives of equity and fair play, we do not think that it would be legally correct to grant any imprimatur to the conduct of the appellant in inducing the plaintiff into the agreement making insincere and inaccurate representations to him. This is more*so because the appellants contention in effect is that he had engineered and authored an illegal contract; that he had permitted the vendee to enter into it knowing that it is illegal; that he had accepted his share of the advance sale consideration being fully aware of its infirmity, but that he would not comply with his obligations under the contract on the ground that it is illegal. This is a contradiction in itself and we are of the view that the appellant cannot be given the luxury of taking advantage of his own making and then sitting over the money that he received as advance expressly refusing to return it. This is a text book illustration of the Rule of contradictio in adjecto where the contradiction is self evident with the defendant contending that the alleged infirmity, of which he himself is the cause, in Ext. A1 contract is reason why it should not be enforced against him.

38. Even though we have recorded the above submissions, we are, however, certainly of the view that Ext. A1 does not suffer from the vice of being uncertain. This is because, as we have already seen, Ext. A1 agreement says that 100% shares have to be sold and the value for 100% of the shares is also fixed. This in turn means that each of the shareholders will also be obligated to transfer 100% of their shares. There is no uncertainty here. The uncertainty, if at all there is any that is now sought to be shown, is as regards the exact number of the shares that was wilfully refused to be disclosed by each of the shareholders, including the appellant, in Ext. A1. Merely because the shareholders did not choose to show their respective numbers of shares in the agreement, it does not become vitiated by uncertainty because fortunately for the vendee/plaintiff, he had agreed to buy 100% of the shares, for which he was obligated to pay a consolidated sale price, irrespective of the actual numbers with each shareholder, which was accepted by the appellant and respondents 2 to 5 herein.

39. At this time and in purported answer to our view above, Sri. R.D. Shenoy, the learned senior counsel vehemently asserts that even if his client can be seen to be the one who has engineered the illegality in the agreement, it is the obligation of this Court, acting as a court of equity, that such illegalities are not allowed to be perpetrated. He brought to our notice the judgment of the Honble Supreme Court in Ganesh Shet v. Dr. C.S.G.K. Setty and others, AIR 1998 SC 2216 [LQ/SC/1998/610] : 1998 ICO 398 and contends that illegality in a contract or any part of a contract is a bar to specific performance as well as to every other proceeding by which either the parties may seek to enforce it. According to him, the defence founded on the illegality of a contract differs in its nature from most other defences because such objection is rather in the nature of the public speaking through the Court than merely that of the defendant as a party to the action. He says that the law disallows all proceedings in respect of illegal contracts not from any consideration of the moral position and rights of the parties but upon grounds of public policy. His submissions, of course, draw strength from the doctrine of Ex Dolo Malo Non Oritur Actio, which provides that no right of action can have its origin in fraud, and he maintains that this principle is founded on the sacrosanct principles of public policy.

40. We are, however, not impressed with these submissions in this case, because as we have already recorded above, we find little reason to hold that Ext. A1 contract is illegal or opposed to public policy in any manner. We cannot see that any of the contentions raised by the appellant, based on the doctrine above, would come to his aid because what is provided in Ext. A1 is only the transfer of shares and not the transfer of the property. We, therefore, find ourselves without favour for these submissions and therefore, have no other option but to repel the same.

41. The above being said, we are aware that Sri. R.D. Shenoy, learned senior counsel has also a contention that a contract, to be specifically enforced, must be unambiguously pleaded and proved as regards its terms and alleges that it is not so done in this case. He reads from the judgment of the Honble Supreme Court in Ganesh Shet (supra) in submitting that in a suit for specific performance, evidence and proof of the agreement must be absolutely clear and certain. He further relies on Pomeroy on Specific Performance of Contract (third edition paragraph 159), to contend that a greater decree of certainty is required for the terms of an agreement which is sought to be specifically executed in equity, than is necessary in a contract which is to be the basis of an action under the law of damages. The learned senior counsel says that the law is now well settled that even when parties adduce evidence with regard to a contract not pleaded in the evidence, relief cannot be granted on the basis of that evidence and that the subsequently pleaded contract cannot be ordered to be enforced and relies on paragraph 16 of Ganesh Shet (supra), which reads as under:

"16. It appears to us that while normally it is permissible to grant relief on the basis of what emerges from the evidence-even if not pleaded, provided there is no prejudice to the opposite party, such a principle is not applied in suits relating to specific performance. In Gonesh Ram v. Ganpat Rai, AIR 1924 Calcutta 461, the Calcutta High court has considered the same question. There the agreement pleaded was not proved but plaintiff wanted to prove an antecedent agreement based on correspondence. It was held that the plaintiff, in a suit for specific performance, could not be permitted to abandon the case made out in the plaint and to invite the Court to examine whether a completed agreement may or may not be spelt out of the antecedent correspondence. In that connection Sir Asutosh Mookerjee observed:

"The Court would not in a case of this description permit the plaintiffs to depart from the case made in the plaint as the Court discourages, as a rule, variance between pleadings and proof. The test to be applied in such cases is whether if the variance were permitted in favour of the plaintiffs, defendants would be taken by surprise and be prejudiced thereby This rule is applied with special strictness in cases of specific performance of contracts. In Hawkins v. Maltby, (1867) 3 CH A 188. One contract was alleged and another was proved, with the result that the bill was dismissed. No doubt where there has been part performance, the Court may struggle with apparently conflicting evidence rather than dismiss the suit. This appears to have been the view adopted by Lord Cottenham in Mundy v. Jolliffe, 5 My & Cr 167: (1839) 9 LJ.Ch 95. In the case before us there is no question of part performance."

42. He further refers to paragraph 17 of the said judgment and predicates that when a plaintiff has failed to establish the contract, then the court would not make a decree for specific performance of a different contract.

43. There can certainly be no two ways from the ratio of the judgment of the Honble Supreme Court in Ganesh Shet (supra) and we are in respectful affirmation of the same. The question, however, is whether, in the facts of this case, the plaintiff has attempted to show a different contract than what was indited in Ext. A1. The answer to this is obviously an emphatic no because the plaintiff has, in his plaint, pleaded complete adherence to the specific contractual obligations in Ext. A1 and all other pleadings therein are only in terms of the covenants contained in Ext. A1. He does not plead a different or a separate contract but confines himself to the obligations and duties of the parties as specified in Ext. A1 alone. We, therefore, do not see how the judgment in Ganesh Shet (supra) would come to the aid of the appellant in this case. On the contrary, it is the appellant who has made an endeavour to show variation of the terms in Ext. A1 by his interpretation of the intention of the parties at the time when it was entered into and by conceding his design in attempting to inject uncertainty into it by refusing to disclose the member of his shares in the company. This becomes more conspicuous when we see that even though in the written statement the appellant says that he is entitled to hold 771 shares in the company, he does not give any evidence in support of the same. His answer before us is that he is not liable to prove it and that all that he has to show is that he owns such shares in the company, which then is for the vendee to disprove.

44. We are afraid that this tenor of the defence is contrary to law and fair play because we are certain that when the plaintiff/vendee invoked his remedy under the Specific Relief Act by enforcing Ext. A1, it was up to the appellant to prove that the number of his shares, as was understood by the vendee, was in fact different from the actual shares held by him. He could have easily said that the shares held by him is a particular number and he could have proved it by cogent evidence which would have then led the Court below not to decree the suit in the manner as prayed for by the plaintiff. Of course, the Court would be always justified in enforcing the agreement with respect to 100% shares of the appellant, but the Court could have arrived at a different figure with respect to the compensation payable for such transfer had the appellant being able to show that his holding in the company is much more than what was mentioned or what was represented to the plaintiff/vendee at the time when the agreement was entered into.

45. We say this also because at the time when Ext. A1 agreement was entered into, it appears that all the shareholders agreed that they had more or less equal number of shares in the company. This is why the advance was shared equally and an impression was created in the mind of the vendor, we think justifiably, that the balance sale consideration also has to be shared equally. It is pertinent to note that none of the other shareholders, who were also parties to the suit as defendants 2 to 5, had a case against this. Further, the fact that even the fifth defendant, Sri. Binu Zacharia, accepted the same amount, as was offered to the other defendants, as his share of the sale consideration, even though he had a case, as is evident from Ext. B1, that he held an augmented number of shares, would only show that the disputes Between the shareholders, which led to the proceeding before the Company Law Board had been resolved between them by accepting equal or more or less equal shareholding in the company. From that perspective, there is no uncertainty in any of the terms in Ext. A1 and we do not think that we would obtain any reason to interfere in any manner with the decree and judgment of the court below, assailed before us in this appeal.

46. In such circumstances, we hold that the judgment and decree impugned in this appeal has analysed the facts and evidence correctly and that the decree passed by it is irreproachable. We are, therefore, left with no option but to dismiss this appeal confirming the judgment and decree of the Sub Court, Thiruvalla in O.S.No. 128 of 2011. We do so.

47. Since we see that the parties have been contesting this appeal with vehemence on certain fundamental principles, we deem it appropriate that we make no order as to costs and to leave the parties to suffer their respective costs in this appeal.