Sandhya Rani Sarkar Vs. Sudha Rani
Debi & Ors [1978] INSC 29 (14 February 1978)
DESAI, D.A.
DESAI, D.A.
BEG, M. HAMEEDULLAH (CJ)
CITATION: 1978 AIR 537 1978 SCR (2) 839 1978
SCC (2) 116
ACT:
Constitution of India, 1950, Article
136--Interference by Supreme Court, when condonation of delay was ordered by
the Court, exercising its discretionary powers and when sufficient cause has
been shown, propriety--Limitation Act (36 of 1963), 1963, S. 5.
Civil Procedure Code, (Act 5 of 1908),
Section 2(2)--Decree--Preliminary decree--Decree passed in a suit for specific
performance of contract of sale of immovable property calling upon the
purchaser to deposit the balance of consideration within the time stipulated in
decree with superadded condition that in the event of default, the suit would
be dismissed is not a preliminary decree.
Limitation Act (36 of 1963), Section 5-Condonation
of delay--Amendment of decree--Decree in a suit for specific performance of
contract for the sale of immovable property calling upon the purchaser to
deposit balance of consideration within the time stipulated in decree--order
extending time to deposit the balance of consideration would not result in
amending the decree.
Specific Relief Act (47 of 1963), Section
16(b) and (c)--Specific performance of contract--Decree for specific
performance refused.
HEADNOTE:
A contract for Sale of premises No. 88-A Rash
Behari Avenue, Calcutta was entered into between the appellant and deceased
Smt. Paribala Das on 8-2-1956 for a consideration of Rs. 46,000/-. The
agreement for sale Ex.I, recites that Rs. 1001/- were paid as earnest money and
subsequently the defendant vendor received a further sum of Rs. 2000/- from the
plaintiff intending purchaser. Parties had agreed to complete the transaction
by the end of April '56. The appellant was put in actual possession of the 1st
and 2nd floors of the premises by the defendant vendor in her anxiety to
complete her part of the contract, but the appellant was seeking time on some
pretext or the other and ultimately filed a suit for specific performance on
28th January 1957, alleging non-performance by the vendor defendant. The trial
Court decreed the suit on 30th April, 1962, styling it as preliminary decree.
The defendant vendor was directed to execute and register the deed of sale in
favour of the plaintiff on receipt of the amount stated in the order within 30
days of date failing which the plaintiff appellant was directed to file in
Court, within 15 days after the expiry of 30 days, the draft of conveyance with
stamp there for. The decree was drawn up on 15-5-1962.
The appellant did not comply with the terms
of the decree but sought some directions from the Court regarding the excess
land and a Commissioner was appointed on 14-5-1964.
On 26-8-65, the Court directed the plaintiff
appellant to deposit the amount in Court by 22-9-1965; but the appellant filed
a revision application before the High Court which was dismissed on 8-1-1968.
The High Court granted 3 weeks' time for depositing the amount and again
further time till 8-2- 1968. The appellant deposited the money on 6-2-68 and
thereupon the vendor defendant No. 1 made an application on 25-3-1968
requesting the Court to draw the final decree so as to enable her to prefer
first appeal. ibis application was rejected by the Court on 27th March 1968,
and thereafter she preferred First Appeal to the High Court on 11-4-1968 and
filed an application for condonation of delay, if any, on 8- 7 .
The High Court held that the appeal was
barred by limitation; but on the facts of the case condoned the delay as
sufficient cause having been shown, and examined the appeal on merits and
Allowed the appeal.
840 Dismissing the plaintiff's appeal, by
special leave, the Court
HELD (1) '(a) Discretion is conferred on the
Court before which an application for condonation of delay is made and if the
Court after keeping in view relevant principles exercises its discretion
granting relief unless it is shown to be manifestly unjust or perverse the
Supreme Court would be loathe to interfere with it. [847 C-D] (b) It is
undoubtedly true that in dealing with the question of condoning the delay under
section 5, the party seeking relief has to satisfy the Court that he had
sufficient cause for not preferring the appeal or making the application within
the prescribed time and this has always been understood to mean that the
explanation has to cover the whole period of delay. However, it is not possible
to lay down precisely as to what facts or matters would constitute
"sufficient cause" under Section 5. But those words should be
liberally construed so as to advance substantial justice when no negligence or
any inaction or want of bona fides is imputable to a party i.e. the delay in
filing an appeal should not have been for reasons which indicate the party's
negligence in not taking necessary steps which he would have or should have
taken. What would be such necessary steps ;will again depend upon the
circumstances of a particular case. [847 A-C] Sitaram Ramacharan v. M. N.
Nagarashana, [1960] 1 SCR 875 @ 889 =A.I.R. 1960 SC 260 @ pp. 265-66; State of
West Bengal v. Administrator, Howrah Municipality, [1972] 2 S.C.R. 874 = A.I.R.
1972 S.C. 749, relied on.
(c) In the instant case, the High Court took
into consideration the fact that no affidavit in opposition to the application
for condoning delay was filed even though a copy of the application was served
on the respondent before the High Court and accordingly it was concluded that
averments in the application remained unrebutted. The High Court also took into
consideration the relevant fact that plaintiff sought extension of time to
deposit balance of consideration from time to time and this is important
because if the deposit was %not made the suit for specific performance of
contract was liable to be dismissed as per the decree of the trial court as
well as the order of the High Court in earlier revision application. The,-,High
Court recapitulated the events since the judgment of the trial Court and
concluded that it was satisfied that the appellant before it had sufficient
cause for not preferring the appeal within the period as prescribed in law and
accordingly condoned the delay in preferring the appeal.
These are vital and relevant considerations,
while considering the prayer for condoning the delay in preferring the appeal
and thus no case has been made out for interfering with the same. [847 E-G] (d)
To contend that assuming that there was delay on the part of the plaintiff in
performing her part of the contract once she was put in possession of 'a
substantial portion of the property, which was intended to be purchased a
decree for specific performance should not be refused is not always correct and
again it depends on the facts of each case. [850 G-H] Williams v. Greatrex.
[1956] All. E.R. 705 quoted with approval.
2. (a) In a suit for specific performance of
contract for sale of immovable property it is incumbent upon the Plaintiff to
affirmatively establish that all throughout he or she, as the case; may be, was
willing to perform his or her part of the contract, and that the failure on the
part of the plaintiff to perform the contract or willingness to perform her
part of the contract may in an appropriate case disentitle her to relief, one
such situation being where there is inordinate delay on the part of the
plaintiff to perform his or her part of the contract. [849 B-C] (b) The
question whether relief of specific performance of the, contract for the
purchase of immovable property should be granted or not always depends on the
facts and circumstances of each case and the Court would not grant such a
relief if it gives the plaintiff an unfair advantage over the defendant. [850
A-B] 841 (c) In the instant case, by the terms of the contract the vendor had
to put the purchaser in possession of the property when conveyance is executed
and balance of consideration is paid land that was to be done by the end of
April 1956. Even though the plaintiff purchaser had failed to perform any
portion of her part of the contract by the end of April 1956, the vendor put
the plaintiff in actual possession of the first and second floors of the
premises to be sold on 28th April 1956, and the plaintiff is in possession of
the same till today that is after a lapse of more than 20 years. On the other
hand he deposited after struggle and procrastination the balance of
consideration on 6th February 1968 that is nearly 12 years after the date of
agreement. The plaintiff thus enjoyed actual possession of the property from
April 1956 to February 1968 when she parted with consideration without paying a
farthing for the use and occupation of the premises which, on a reasonable
construction of the contract, she was not entitled to at all, till she parted
with the full consideration and took the conveyance. The stages within which
the contract was to be completed were actually demarcated, and set out in the
contract itself and by the land of April, 1956, the transaction was to be
completed. In her anxiety to see that the transaction was completed, the
defendant vendor put the plaintiff in possession of a substantial portion of
the property even when the plaintiff had not paid a major part of the
consideration. The procrastination on the part of the plaintiff put the
defendant in such a disadvantageous position that she was forced to sell the
adjacent property to raise enough money to pay off the dues in respect of the
property which the plaintiff desired to purchase. [849 D-H, 850 E-F] (d) The
High Court was justified in refusing the decree for specific performance of the
contract, on the ground that while the defendant did everything within her
power to meet the requests made by the plaintiff, the latter avoided performing
her part of the contract under one or the other pretext.[850 F-G] (e) The
contract was to be completed by April 1956. It was not completed till 1957,
even though the defendant after satisfying the queries of the plaintiff fixed
different dates on different occasions calling upon the plaintiff to complete
the transaction. Thereafter the plaintiff filed a suit. The suit was decreed on
30th April 1962. The Plaintiff by that decree was called upon to deposit the
balance of consideration within 30 days of the date of the decree. She did not
deposit the amount by the stipulated date. She asked for extension of time. In
fact, it prominently appeared that the plaintiff put off performing her part of
the contract presumably because she had not the necessary wherewithals to take
the conveyance when she could be obliged to pay the balance of consideration
and having obtained possession hung on to it without meeting her obligation. If
in this background the High Court interfered within the decree of the trial
Court, there was 'nothing objectionable in it. [853 C-G] Jitendra Nath Roy v.
Smt. Maheshwari Bose, A.I.R. 1965 Cal.
45, Bank of India Ltd. v. Jamsetji A. H.
Chinoy and Anr., 77 IA, 76 discussed.
3. To assert that the decree made in a suit
for specific performance of contract for sale of immovable property calling
upon the purchasers to deposit the balance of consideration within the time
stipulated in the decree with super added condition that in the event of
default the suit would stand dismissed, is a preliminary decree, is to ignore
the relevant provisions of the Code of Civil Procedure which require in certain
types of suits to pass preliminary decree. Such a suit when contested, each
party would be accusing the opposite party of committing breach of contract.
The right to ask for specific performance of contract would be adjudicated upon
and in fact in this case it was adjudicated upon. The trial court did call upon
the defendant to execute the conveyance on receipt of consideration. Such a
decree could never be said to be preliminary decree. [841 E-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1389 of 1976.
Appeal by Special Leave from the Judgment and
Order dated 6- 6-74 of the Calcutta High Court in Appeal from Original Decree
No. 1056 of 1968.
842 Purushottam Chatterjee and Rathin Das,
for the Appellant.
D. M. Mukherjee and N. R. Chowdhury, for the Respondents.
The Judgment of the Court was delivered by
DESAI J.-This appeal by special leave by the original plaintiff questions the
correctness of the decree dismissing her suit for specific performance of
contract for 'sale of premises No. 88-A, Rash Behari Avenue, Calcutta, entered
into between her and deceased Smt. Paribala Das on 8th February 1956 for a
consideration of Rs. 46,000/-. The agreement of sale, Ext. 1, recites that Rs.
1001/- were paid as earnest money and subsequently the defendant vendor
received a further sum of Rs. 2,000/- from the plaintiff intending purchaser.
Various terms of agreement would be referred to in the course of this judgment.
The plaintiff filed the suit for a decree for 'specific performance of the
contract alleging that even though she 'is ready and willing to perform her
part of the contract the defendant No. 1 has not completed the transaction and,
therefore, a decree for specific performance should be made in favour of the
plaintiff. In this suit she impleaded vendor defendant No.
I and her son Hrishikesh Das as defendant No.
2. The suit was resisted by the defendants, inter alia, contending that the
plaintiff was not ready and willing to perform her part of the contract more
particularly saying that the vendor was in urgent need of money to pay off the
mortgage debt and, therefore, she had entered into contract for sale of
property and that time was of the essence of the contract and yet the plaintiff
under one or the other false pretext put off performing her part of the
contract so that the vendor was compelled to sell another valuable property
bearing No. 86-A, Rash Behari Avenue, Calcutta. The trial Court after an
elaborate examination of the evidence decreed the suit on 30th April 1962
directing "defendant No. 1 to execute and register a deed of sale in
favour of the plaintiff in respect of the premises No. 88A, Rash Behari Avenue,
Calcutta, on receipt of the balance of consideration of Rs. 42,999 and a
further sum of Rs. 500 if there be an excess land of 1 cottah 88 sq. ft. beyond
2 cottahs 2 chittaks 38 sq. feet or any money proportionate to the extent of
the excess land, amicably within 30 days, of date, failing which the plaintiff
do deposit in Court the consideration thus due, together with the cost of execution
and registration and the draft of the conveyance with stamp for the conveyance
within 15 days of the expiry of that 30 days for having the conveyance executed
and registered through Court. In case of default on the part of the plaintiff
in complying with the above order the suit shall stand dismissed with costs and
that the sum of Rs. . . . .
be paid by the .... to the .... on account of
the costs of this suit, with interest thereon at the rate of...... per cent per
annum from this date to date of realisation". The decree in terms of the
operative portion hereinabove mentioned was drawn up on 16th May 1962. Since
the date of the decree certain events occurred which would be noticed while
examining the first contention on behalf of the appellant herein. Suffice it to
say that the vendor preferred first appeal to the High Court of Calcutta on
11th April 1968. When the appeal appeared on the cause list and was taken up
for hearing, an application under s. 5 of the Limitation Act supported by an
affidavit was 843 filed on 8th August 1972 requesting the Court that in case
the appeal is found to be barred by limitation the appellant before the High
Court was prevented by a sufficient cause from preferring the appeal in time
and, therefore, the delay should be condoned. The, application for condonation
of delay and the appeal were heard together and the High Court while holding
that the appeal was barred by limitation, was further of the opinion that the
vendor appellant before it was prevented by a sufficient cause from preferring
the appeal in time, and accordingly condoned the delay. On merits, the High
Court held that the vendor was always ready and willing to perform her part of
the contract but the plaintiff purchaser under one pretext or the other
deferred performing her part of the contract beyond reasonable time and was,
therefore, not entitled to a decree for specific performance. Accordingly, the
High Court allowed the appeal and dismissed the plaintiff purchaser's suit.
Hence this appeal by the plaintiff purchaser.
The first contention raised on behalf of the
appellant is that the appeal before the High Court preferred by the respondent
vendor was barred by limitation and the vendor- had failed to make out any
cause much less a sufficient cause, preventing her from preferring the appeal
in time and the High Court was in error in exercising the _ discretion
condoning the delay and admitting the appeal to file. On behalf of the vendor
respondent it was submitted that the appeal before the High Court was in time
and at any rate the discretion exercised by the High Court could not be styled
as perverse or unreasonable and this Court should not interfere with the same.
Simultaneously, it was submitted that the material on record would
unquestionably establish that the appellant before the High Court was prevented
by a sufficient cause from preferring the appeal in time.
Some relevant and material dates may now be
noticed.
Agreement of 'sale, Ext. I on which suit was
founded was executed on 8th February 1956. Suit for specific performance of
this agreement was instituted on 28th January 1957. It was decreed on 30th
April 1962. The decree was drawn up on 25th May 1962, the first appeal was
preferred on 11th April 1968. An application under s. 5 of the Limitation Act
supported by an affidavit was presented on 8th August 1972. There are certain
events that occurred after the decree was drawn up on 25th May 1962 and before
11th April 1968 when appeal was preferred by the vendor of which brief note
would be necessary. The material portion of the decree has been set out in
extenso above and at first glance it would appear that the purchaser had to pay
the I amount therein mentioned to the vendor within 30 days from the date of
the decree and the vendor had to execute the deed of conveyance failing which
the amount was to be deposited in the Court within 15 days from the expiry of
the first mentioned 30 days and submit the draft of conveyance to the Court for
getting it executed and registered through the Court. The decree further
directed that if the purchaser failed to deposit the amount within the
stipulated time the suit would stand dismissed. The vendor interpreted the
decree to be a preliminary decree, and awaited the purchaser to perform her
part of the decree by depositing the amount in the Court. The purchaser failed
to deposit the amount within the 844 stipulated time but on 14th June 1962 she
sought some directions from the Court for making the deposit. There was some
dispute between the parties about the extra land which was to be sold and its
price. An order was made by the trial Court on 14th May 1964 directing the
plaintiff purchaser to take steps for appointment of a Commissioner to
determine the area of extra land and the price to be paid for such land and she
was required to take steps by 22nd May 1965. A further direction was given on
26th August 1965 directing the plaintiff to deposit Rs. 42999 plus Rs. 500 by
22nd September 1965 pursuant to the maps and report submitted by the
Commissioner. Plaintiff purchaser preferred Civil Revision Application No. 3195
of 1965 challenging the report of the Commissioner and the direction of the
Court. The Civil Revision Application was dismissed by the High Court on 8th
January 1968 and the High Court simultaneously extended the time for depositing
the balance of consideration by three weeks from the date of the order making
it conditional that in the event of default the suit would stand dismissed.
This order was modified by the High Court on 2nd February 1968 extending the
time to make the deposit till 8th February 1968 retaining the original
condition. The purchaser deposited the balance of consideration on 6th February
1968 whereupon the vendor defendant No. 1 made an application on 25th March
1968 requesting the Court to draw the final decree so as to enable her to
prefer first appeal. This application was rejected by the Court on 27th March
1968 and thereafter the appeal was preferred to the High Court on 11th April
1968.
As stated earlier, an application requesting the
Court to condone the delay in preferring the appeal was filed on 8th August
1972.
The appeal against the decree dated 30th
April 1962 preferred on 11th April 1968 was obviously barred by limitation. To
assert that the decree made in a suit for specific performance of contract for
sale of immovable property calling upon the purchaser to deposit the balance of
consideration within the time stipulated in the decree with super added
condition that in the event of default the suit would stand dismissed, is a
preliminary decree, is to ignore. the relevant provisions of the Code of Civil
Procedure which require in certain types of suits to pass preliminary decree.
Such a suit when contested, each party would be accusing the opposite party of
committing breach of contract. The right to ask for specific performance of
contract would be adjudicated upon and in fact in this case it was adjudicated
upon. The trial court did call upon the defendant to execute the conveyance on
receipt of consideration. Such a decree could never be said to be preliminary
decree. If defendant vendor was contesting the right of the plaintiff to ask
for 'specific performance and that was concluded adverse to her and if the
vendor wanted to challenge the finding, it was incumbent upon her to prefer an
appeal within the prescribed period of limitation.
Similarly, it is also not possible to
entertain the contention that the orders extending the time to deposit the
balance of consideration would result in amending the decree and as the appeal
is preferred after such last amendment the appeal would be in time. Reliance
was placed on Sm.
Soudamini Das v. Nabatak Mia Bhuiya and
others,(1) but that (1) A.I.R. 1931 Calcutta 578.
845 decision would not assist the respondent
and in fact the High Court treated that fact as sufficient for extension of
time under s. 5. The decision in Jagat Dhish Bhargava v. Jawarhar Lal Bhargava
and others ( 1 ) proceeds on the basis that litigant deserves- to be protected
against the default committed or negligence shown by the Court or its officers
in the discharge of their duties. In that case litigant had applied for
certified copy of the decree 'soon after judgment I was pronounced but as the
certified copy was not given, appeal was filed without producing certified copy
of the decree and it was contended that under the relevant rules appeal was not
competent. Such is not the case.
Present respondent, if she wanted to question
the decree directing her to execute conveyance, ought to have preferred appeal
against the decree dated 30th April 1962. That has not been done and obviously
the appeal preferred on 11th April 1968 was barred by limitation.
The High Court rightly held that the appeal
was barred by limitation, and then proceeded to examine the submission of the
appellant before it that the appellant was prevented by a sufficient cause from
preferring the appeal in time and the delay should be condoned. The High Court
having examined all the relevant materials placed before it, has exercised its
discretion in favour of the appellant by condoning the delay and admitting the
appeal to file. In the facts and circumstances of this case, could it be said
that the High Court committed an error in exercising its discretion in favour
of the appellant before it ? At the outset it was urged that the cause shown by
the respondent which prevented her from preferring the appeal in time is not
the one accepted by the High Court, but the High Court has made out entirely a
different ground not pleaded for condoning delay.. We have gone through the
application filed by the appellant before the High Court praying for condoning
delay. It was asserted that the appeal, is within time and alternatively it was
prayed that delay, if any, be condoned. The High Court examined both limbs of
the contention. We see no contradiction in what is stated in the application
and what the High Court found as a fact.
The contention is that decree was a
preliminary decree and on deposit it became a final decree. Alternatively it
was contended that various events that occurred since the decree did create an
impression in the mind of the vendor appellant that till the balance of
purchase price was deposited the right to file an appeal did not arise and that
a final decree would be made. That was pleaded and that has been accepted.
Therefore, there is no merit in this contention.
Very serious exception is taken to one
observation of the High Court that an application for condoning the delay was
submitted simultaneously with filing the appeal though in fact it was done
nearly four years after filing of the appeal, and that the office of the High
Court was misled by certain averments made in the Memo of Appeal which the
Registry prima facie accepted and numbered the appeal without insisting upon an
application for condonation of delay or bringing that fact to the notice of the
Court on whose cause list the appeal was listed for admission. Now, it is
undoubtedly true that the application (1) A.I.R. 1961 S.C. 832.
846 for condoning the delay was made on 8th
August 1972 and there is some factual error in-stating in the judgment that the
application was simultaneously filed with the appeal.
But this aspect is not very material as the
delay had to be explained till the date of filing of the appeal and not at any
rate after filing of the appeal or till the application for condoning the delay
was made. It is true that in the Memo of Appeal it has been stated that the
appeal is directed against the judgment and decree dated 30th April 1962 as
amended and/or modified by orders dated 8th January 1968 and 2nd February 1968.
The averments are factually correct and, therefore, it could not be said that
they were made with a view to misleading the Registry of the High Court. By the
decree dated 30th April 1962 purchaser was directed to deposit the balance of
consideration within the stipulated time and at the request of the purchaser
the time was first extended by the trial Court and then by the High Court in
Civil Revision Application No. 3195 of 1965 on two different occasions, viz.on
8th January 1968 and 2nd February 1968. Therefore, no exception can be taken to
those avertments which are factually correct though the appeal would lie
obviously against the decree dated 30th April 1962. It, however, appears that
as the appeal was numbered and was even admitted, though the application for
condoning delay was not made till the appeal was placed on the cause list and
was actually taken up for hearing when an objection was raised that the appeal
was barred by limitation. It is obviously at that stage that the application
for condoning delay was made.
The appellant before the High Court did
honestly believe that the decree was a preliminary decree and only after the
deposit as directed therein was made by the plaintiff purchaser that a final
decree would be made. The learned trial judge has also styled it as a
preliminary decree.
Subsequent steps which have been listed in
detail above clearly show that the plaintiff purchaser did not deposit the
amount and in fact got a Commissioner appointed for determining the area of
excess land and when the report of the Commissioner was accepted by the trial
Court, that decision was questioned by the plaintiff in Civil Revision No.
3195/65. If since the decree the plaintiff sought extension of time for
depositing the amount which was the obligation imposed by the decree the
performance of which will make the decree executable against judgment-debtor,
the judgment-debtor may honestly, though erroneously, believe that there was no
decree against which she could appeal unless the deposit was made. The decree
also provided that failure to deposit would entail dismissal of the suit. The
defendant may honestly believe that if the consideration is not deposited the
suit would stand dismissed and it would not be necessary to prefer an appeal at
all. Such a contention may not stand the scrutiny of a law Court but the
question to which we must address ourselves is whether the defendant vendor on
account of this peculiar situation could be said to be prevented by a
sufficient cause from preferring an appeal in time ? Soon after the deposit was
made she first requested the Court to draw up a final decree which request was
turned down and she immediately preferred the appeal. These are relevant
considerations while examin- ing a request for condoning the delay in
preferring an appeal and on 847 these relevant considerations if the High Court
is satisfied simultaneously keeping in view the conduct of the, Plaintiff since
the date of the decree a case for condoning the delay is made out, and no
exception can be taken to it. It is undoubtedly true that in dealing with the
question of condoning the delay under s. 5 of the Limitation Act the party
seeking relief has to satisfy the Court that he had sufficient cause for not
preferring the appeal or making the application within the, prescribed time and
this has always been understood to mean that the explanation has to cover the
whole period of delay, vide Sitaram Rancharan etc. v. M. N. Nagarshana &
Others(1). However, it is not possible to lay down precisely as to what facts
or matters would constitute 'sufficient cause' under s. 5 of the Limitation
Act. But those words should be liberally construed so as to advance
substantial, justice when no negligence or any inaction or want of bona fides
is imputable to a party, i.e., the delay in filing an appeal should not have
been for. reasons which indicate the party's negligence in not taking necessary
steps which he would have or should have taken. What would be such necessary
steps will again depend upon. the circumstances of a particular case (vide
State of West Bengal v. Administrator, Howrah Municipality and others(2).
Discretion is conferred on the Court before which an application for condoning
delay is made and if the Court after keeping in view relevant principles
exercises its discretion granting relief unless it is shown to be manifestly
unjust or perverse, this Court would be loathe, to interfere with it.
The High Court took into consideration the
fact that no affidavit in opposition to the application for condoning delay was
filed even thorough copy of the application was served on the present appellant
who was respondent before the High Court and accordingly it was concluded that
averments in the application remained unrebutted. The High Court also took into
consideration the relevant fact that plaintiff sought extension of time to
deposit balance of consideration from. time to time and this is important
because if the deposit was not made the suit was likely to be dismissed as per
the decree of the trial Court as well as the order of the High Court in Civil
Revision Application No. 3195 of 1965. The High Court recapitulated the events
since the judgment of the trial Court and concluded that it was satisfied that
the appellant before it had sufficient cause for not preferring the- appeal
within the period as prescribed in law and accordingly condoned the delay in
preferring the appeal. In our opinion these are vital and relevant
considerations was considering the prayer for condoning the delay in preferring
the appeal and no case is made out for interfering with the same.
And now to the merits of the contentions
raised in the appeal. Plaintiff's suit for specific performance had been
decreed by the trial Court and on appeal by the vendor defendant, the suit has
been dismissed. Plaintiff is here before us praying for a decree for specific
(1) [1970] 1 S.C.R. 875 at 889.
performance of the contract. Let it be
recalled that the contract of which plaintiff seeks performance is dated 8th
February 1956 and the parties had agreed to complete the transaction by the end
of April 1956. The contract provided that within a week from the date of the
agreement the, vendor shall give to the purchaser for proper inspection all original
documents of title and other papers connected therewith and necessary
information and the purchaser shall within a period of 3 one and half months
from such inspection of the documents and other papers and receipt of other
particulars and information complete her searches in respect of the property
and the vendor's title being proved good and marketable So the satisfaction of
the purchaser the deed of conveyance will be executed and registered within
fifteen days thereof in favour of the purchaser or her nominee or nominees at
the cost of the purchaser or such nominee or nominees. The vendor also, agreed
and undertook to deliver to the purchaser vacant and peaceful possession of the
property to be sold with the execution of the deed of conveyance. Keeping in
view these important terms, Mr. Purshottam Chatterjee contended that the High
Court was in error in holding that the vendor complied with all the requests of
the purchaser and it was submitted that the vendor had committed a default in
complying with the requests. It was submitted that the plaintiff purchaser
wanted to inspect title deeds as evidenced by Ext. 2 dated 17th February 1956
to which a reply was sent on behalf of the defendant vendor that these
documents were filed in title suit No. 10 of 1956 and were lying in the Third
Court of the Sub-Judge at Alipore and that it was as late as 9th August 1956
that the defendant vendor asked the purchaser to inspect the documents in the
Court and also failed- either to produce the original documents or certified
copies as undertaken in the contract for sale of property. It was, therefore,
contended that the vendor committed a breach of the terms of the agreement when
she failed to produce the title deeds for inspection of the purchaser within
the prescribed time schedule. It appears that the contention in the form it was
canvassed before us was not raised before the High Court. Nor does it appear to
have been contended before the trial Court. However, it must be stated that in
a slightly different form this contention was pressed before the trial Court in
support of the submission that the plaintiff was entitled as per terms of the
contract to one foot of land to the north of the property to be purchased and
the trial Court which bad in fact decreed the plaintiff's suit, had on this
point held against the plaintiff. Mr. Mukherjee for the respondent submitted
that title was approved by the plaintiff by 30th April 1956 and then she was
put in possession of a substantial portion of the premises. At any rate, during
the extended period the title of the vendor was accepted by the plaintiff and
the draft of conveyance deed prepared by her attorney was accepted by the
vendor and yet the plaintiff failed to take conveyance by the date next fixed
for the same and--raised an untenable controversy about 1 foot of land to the
north of the property to be sold to her. Therefore, even if vendor failed to
submit title deeds in time it loses all significance. Save this, the finding of
the High Court that the defendant had complied with all the requests made by
the plaintiff to complete the transaction in time could not be assailed.
849 The High Court reversed the decree of the
trial. Court holding that the plaintiff purchaser had under one pretext or
other put off the taking of the deed of conveyance and delayed performing her
part of the contract. The correctness of this finding was seriously assailed on
behalf of the appellant. It was urged that the High Court itself has found in
this case that time was not, the essence of the contract nor was it made
essence of the contract because the date for performance was extended on number
of occasions.
It was urged that this discloses a
self-contradictory approach on the part of the. High Court when on the one hand
it holds that time was neither the essence of the contract nor was it made
essence of the contract but on the other refuses decree for specific
performance on the only ground that the plaintiff delayed performing her part
of the contract. It is undoubtedly true that the High Court has recorded a
finding (p. 32) that time was not the essence of the contract nor was it made
essence of the contract by a specific notice, but it is equally true that the
plaintiff seeks relief for specific performance of contract and it is incumbent
upon the plaintiff to affirmatively establish that all throughout he or she, as
the case may be, was willing to perform his or her part of the contract, and
that the failure on the part of the plaintiff to perform the contract or
willingness to perform her part of the contract may in an appropriate case
disentitle her to relief, one such situation being where there is inordinate
delay on the part of the plaintiff to, perform his or her-part of the contract
and that is how the High Court has approached the matter in this case. One,
aspect of the case which deserves notice is that by the terms of the contract
the vendor had to put the purchase in possession of the property when
conveyance is executed and balance of consideration is paid and, that was to be
done by the end of April 1956. Even though the plaintiff purchaser had failed
to perform any portion of her part of the contract by the end of April 1956,
the vendor put the plaintiff in actual possession of the first and second
floors of the premises to be sold on 28th April 1956 and the plaintiff is in
possession of the same till today that is after a lapse of more than 20 years.
On the other hand, she deposited after struggle and procrastination the balance
of consideration on 6th February 1968 that is nearly 12 years after the date of
agreement. The plaintiff thus enjoyed actual possession of the property from
April 1956 to February 1968 when she parted with consideration without paying a
farthing for the use and occupation of the premises which, on a reasonable
construction of the contract, she was not entitled at all, till she parted with
the full consideration and took the conveyance. This has undoubtedly weighed
with the High Court in coming to the conclusion that the plaintiff is
disentitled to a relief of specific performance of contract.
Mr. Chatterjee contended that delay on the
part of the plaintiff would not disentitle her to a decree for specific
performance unless it can be shown that time was of the essence of the contract
or was made essence of the contract or delay on the part of the plaintiff
amounted to abandonment of the contract. Our attention was drawn to Article
466, Halsbury's Laws of England, III Edition, Vol.
36, p. 322 where it is observed that delay by
a plaintiff in performing his part of the contract is a bar to his enforcing
specific performance, pro- 850 vided that (1) time was in equity originally of
the essence of the contract; or (2) was made so by subsequent notice;
or (3) the delay has been so great as to be
evidence of an abandonment of the contract. It was then said that in view of
the finding of the High Court that time was not of the essence of the contract
or was not so made, the decree could not be refused on the ground of delay. The
question whether relief of specific performance of the contract for the
purchase of immoveable property should be granted or not always depends on the
facts and circumstances of each case and the Court would not grant such a
relief if it gives the plaintiff an unfair advantage over the, defendant. A few
relevant facts of the case would unmistakably show that if a decree for
specific performance in this case is granted it would give the plaintiff an
unfair advantage over the defendant. The defendant was obliged to sell the
property because it was mortgaged with Hindustan Co-operative 'Insurance
Society Ltd., and the mortgagee Company had filed Title Suit No. 10/656 for
realisation of mortgage dues. The vendor then had thus a compelling necessity
to sell the, property to save the property from being sold at a Court auction.
It is in this background that we have to appreciate the conduct of the
plaintiff. The stages within which the contract was to be completed were
clearly demarcated and set out in the contract itself and by the end of April
1956 the transaction was to be completed. In her anxiety to see that the
transaction was completed the defendant vendor put the plaintiff in possession
of a substantial portion of the property even when the plaintiff had not paid a
major part of the consideration. This would clearly evidence the anxiety of the
defendant to successfully complete the contract within the stipulated time. To
repel this submission on the flimsy ground that mortgage was not referred to in
the contract for sale is to ignore the letter on behalf of the defendant dated
25th February 1956 in which it is specifically stated that the title deeds of
the property in question were lying in the court of Sub-Judge at Alipore in
which Hindustan Co- operative Insurance Society Ltd., had filed a suit for
realisation of mortgage dues. And the procrastination on the part of the
plaintiff put the defendant then in such a disadvantageous position that she
was forced to sell the adjacent property 86A, Rash Behari Avenue to Hindu Maha
Sabha to raise enough money to pay off the dues in respect of the property
which the plaintiff desired to purchase. If in this background the High Court
took into consideration the fact that while the defendant did everything within
her power to meet the requests made by the plaintiff, the latter avoided
performing her part of the contract under one or the other pretext and,
therefore, is disentitled to a decree for specific performance, no serious
exception can be taken to this finding.
Mr. Chatterjee, however, contended that
assuming there was delay on the part of the plaintiff in performing her part of
the contract, once she was put in possession of a substantial portion of the
property which was intended to be purchased, a decree for specific performance
could not be refused. In this connection be invited our attention to para 474,
Halsbury's Laws of England, III Edition, Vol. 36, p. 325, where it is observed
that delay does not, however, bar a claim to specific performance if the
plaintiff has been in substantial possession of the benefits 851 under the
contract and is merely claiming completion of the legal estate. Reference was
also made to Williams v.
Greatrex.(1) In that case the delay was of 10
years before entire period of 10 years neither side gave notice requiring
bringing an action for specific performance. During the the other to complete
the transaction. In this background the fact that the intending purchaser was
put in possession of the plots acquired considerable importance and after
considering the question of laches, a decree for specific performance was
granted. But the conclusion was reached on the facts of that case. In the case
before us the defendant had on as many as three different occasions invited the
plaintiff to complete the transaction. By Ext. 2H, 17th July 1956 was fixed as
the date for execution and registration and by Ext. 2J dated 9th August 1956,
12th August 1956 was fixed as the date for execution and registration of the
conveyance. Again by letter dated 27th August 1956, Ext. 2P, the plaintiff was
informed that if the transaction was not completed within a week from 26th
August 1956, the defendant would treat the agreement of sale as cancelled,
forfeit the earnest money and claim damages for wrongful use and occupation of
the premises. In this background it is not possible to accept the submission
that even if the plaintiff was guilty of delay in performing her part of the
contract, in view of the fact that she is in possession of a substantial
portion of the property which is the subject-matter of this appeal, the delay
should be overlooked and a decree for specific performance should be granted.
The correspondence that passed between the
parties prominently brought out three points of dispute between the parties.
The plaintiff claimed sale of one foot of land to the north of the property
involved in dispute. Reliance was placed in support of the submission on the
map annexed to the agreement. The map prepared by the Commissioner was also
referred to. It is not necessary to examine evidence on this point because both
the trial Court which decreed the plaintiff's suit and the High Court which
held against the plaintiff have recorded a concurrent finding that the
plaintiff was not entitled as part of the agreement to purchase one foot of
land to the north of the property. In fact, it has been held that this claim
was purposely invented by the plaintiff fully knowing that to the north of the
premises 88A, Rash Behari Avenue there was no land appurtenant to the said
premises. Even if both the maps are compared it is not possible to come to the
,conclusion that there was any such land which was included in the agreement of
sale. If there was no such land which could be sold to the plaintiff and yet if
the plaintiff persisted in making this demand, the High Court and the trial
Court were both amply justified in coming to the conclusion that this claim was
invented with a view to putting off the date for performing her part of the
contract. But in this connection Mr. Chatterjee contended that the plaintiff
purchaser wanted demarcation of boundary as per Ext. 2E and instead of agreeing
to make arrangement for demarcation. the defendant contended that, demarcation
was aready effected. By letter Ext. 2K, the plaintiff denied any such
demarcation. It was also urged that there is no document on record which would
show that any joint demarcation of (1) [1956] All E. R. 705.
852 the boundary was undertaken and
demarcation was made. In this connection, the letter Ext. 2P on behalf of the
defendant clearly shows that demarcation of the boundary was already done. The
dispute about demarcation has hardly any relevance. In fact, the dispute is
raised by the plaintiff when she claims one foot of land to the north of
property.
Even if one relies upon the map annexed to
the agreement, the claim is not substantiated. Both the trial court and the
High Court have concurrently found that no such land was agreed to be sold. If
the plaintiff still persists in making such a demand she is asking the
defendant to perform an agreement which was not entered into between the
parties.
However, this matter can be looked at from a
slightly different angle also in that when the Commissioner prepared the map
the plaintiff questioned it in the High Court and the High Court accepted the
Commissioners map showing which was the property to be sold by the defendant to
the plaintiff and this map did not contain one foot of land to the north of the
property. The contention about one foot of land to the north was already
negatived and could not be reagitated before the High Court. Even apart from
this technical aspect substantially on evidence also the, plaintiff fails on
this point. Yet she delayed performing her part by insisting upon buying one
foot of land.
Another dispute between the parties was with
regard to the claim of Rs. 2,000/- which the plaintiff appears to have paid to
the tenant to get him vacate a portion of the premises so that she could take
over possession. Both the trial court and the High Court have rejected this claim
observing that if the plaintiff voluntarily paid something for her own benefit
she could not claim the same from the defendant. There is nothing to show that
this amount was paid by the plaintiff on behalf of the defendant or with the
consent or concurrence of the defendant. The plaintiff, till 1968 when she
deposited the balance of consideration in the Court, was not entitled to be put
in actual possession and yet if she was put in possession of a substantial
portion of the premises and she for her own benefit paid something to the
tenant in a portion of the premises to vacate the same so that she can enjoy
it, it was a voluntary payment made by her for her own benefit and not for the
benefit of the vendor. That amount was used by her for her own benefit and
could not be recovered from the defendant.
On the contrary, this claim would show that
the plaintiff was putting hurdles in the way of performing the contract.
Mr. Chatterjee argued that the High Court
clearly committed an error in law in holding that the plaintiff had no
wherewithal to pay the balance of consideration and it was further argued that
the High Court took into consideration extraneous circumstances such as the
insolvency of the husband of the plaintiff to come to the conclusion that the plaintiff
had not necessary wherewithal with her to pay the balance of consideration. In
this connection the plaintiffs case is that the amount of Rs. 2,000/- paid as
earnest money was advanced by her husband and she was to procure the balance of
consideration by selling her ornaments which she had with her. The plaintiff
has not stepped into the witness box. There is no material to show that she bad
enough ornaments which would have fetched nearly Rs. 45,000/-.
853 But reliance was placed on the pass books
of the plaintiff's husband. The pass books show an overdraft account in the
name of the husband of the plaintiff. Assuming that the entries in the pass
book show that the husband of the plaintiff could have procured the amount, the
plaintiff's case is that she was to sell the ornaments to procure the balance
of consideration. If that was the case, she wanted to make out, it was
incumbent upon her to step into the witness box. Now, as against this, there
are some telltale facts on record which permit an irresistible inference that
the plaintiff did not have necessary wherewithal to pay the balance of
consideration and therefore, she put forth one or the other excuse to avoid the
performance, of her part of the contract. Two such pretexts can be readily pointed
out, one when she insisted for the, sale of one foot of land to the north of
the property which claim was thoroughly unjust and improper, and second, the
demand of- Rs, 2,000/- spent by her in making the tenant vacate a portion of
the premises. The contract was to be completed by April 1956 it was not
completed till 1957 even though the defendant after satisfying the queries of
the plaintiff fixed different dates on different occasions calling upon the
plaintiff to complete the transaction. Thereafter plaintiff filled a suit. The
suit was decreed on 30th April 1962. We have already at another place referred
to this decree. to point out that the plaintiff by that decree was called upon
to deposit the balance of consideration within 30 days of the date of the
decree. This would mean that she had to deposit the balance of consideration by
the end of May 1962. She did not deposit the amount by the stipulated date..
She asked for extension of time. Thereafter she moved an application for
ascertaining the area of excess land which was being sold to her. Under this
pretext she did not deposit the balance of consideration. Thereafter when the
Commissioner prepared the map and the Court fixed another date to deposit the
amount, she questioned the order of the.
Court in the High Court and after the High
Court dismissed her revision application and called upon her to deposit the
balance of consideration she again sought extension and ultimately deposited
the amount on 6th February 1968. This would show that at the material point of
time she did not have the necessary wherewithal to pay the balance of
consideration and to take the conveyance and this would provide tell-tale
evidence to explain her conduct in putting forth one or the other impediment in
the path of performance of the contract. If in the background of this evidence
the High Court reached the conclusion that she did not have the necessary
wherewithal with her to pay the balance of consideration and take the deed of
conveyance, one cannot take any exception to it. But in this connection Mr. Chatterjee
contended that the plaintiff seeking specific performance of the contract is.
not required to show that she has at all material time necessary cash with her
to per- form her part of the contract. It is enough if the- plaintiff can show
that she was in a position to raise the money required at or about the time
when the contract was to be; performed and she discharges the obligation of
proving readiness and willingness so far as the financial aspect is concerned.
Reliance was placed on Jitendra Nath Roy v. Smt. Maheswari Bose(1).
Undoubtedly, the question would be, (1) A.I.R. 1965 Calcutta 45.
854 while examining the readiness and
willingness of the plaintiff to perform her part of the contract to find out
whether she would be in a position to take the conveyance by paying the balance
of consideration and that the enquiry may well be, made whether she would be in
a position to raise- the money. Reference was also made to Bank of India Ltd.
v. Jamsetji A. H. Chinoy and Another(1), where it was held that the plaintiff
seeking to prove that he was ready.and willing to fulfill his financial
obligations has not necessarily to produce the money or to vouch a concluded
scheme for financing the transaction. After the High Court dismissed her
revision application and fixed the date 8th January 1968 for depositing the
amount, she had no further contention to put forth and she should have
deposited the amount yet she sought extension of time. And along with this, one
must keep in view her contention that she had to sell her ornaments to raise
the amount for which she did not step into the witness.box to prove her
contention. In this background it does appear that the plaintiff had not the.
necessary wherewithal to perform her part of
the contract.
It was next contended that the relief for
specific performance being discretionary and the trial Court having exercised
its discretion one way in favour of the plaintiff, the High Court should not
have interfered with the same. It may be recalled that on major points of
dispute between the parties the trial Court and the High Court recorded
concurrent findings to wit the claim of the plaintiff for sale of one foot of
land to north of property and the demand of Rs. 2,000/- spent by the plaintiff
for removing the tenant. The third dispute was about removal of fixtures from
the northern wall by the defendant. The trial court held that the defendant
committed default in removing the fixtures. Our attention was drawn to the
relevant correspondence on the subject. It was urged that the defendant was
required to remove the fixtures on the northern wan. On this point the trial
court held that the defendant committed default in removing the fixtures. In
fact, the correspondence would show, that the fixtures could be. removed in a
short time and the defendant was always willing to remove the fixture. But the
trial court held that the defendant committed a default in this behalf and
recorded a finding that as both the plaintiff and the defendant committed
default law must take its own course, viz., the plaintiff should get a decree
for specific performance of that contract. The High Court examined this
contention meticulously. ,So have we done here. In fact, it prominently appears
that the plaintiff put off performing her part of the contract presumably
because she had not the necessary wherewithal to take the conveyance when she
would be obliged to pay the balance of consideration and having obtained
possession struck on to it without meeting her obligation. If in this
background the High Court interfered with the decree of the trial court, we see
nothing objectionable in it. The decree for specific performance in this case
has been rightly refused and this appeal is liable to be dismissed.
(1) 77 I.A. 76.
855 Al one stage Mr. Chatterjee wanted us to
work out the equities of 'the situation but as, we are of the opinion that the
plaintiff is not entitled to a decree for specific performance of the contract,
we need not examine the same.
Accordingly, this appeal fails and is
dismissed with costs.
S.R. Appeal dismissed.
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