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TMI Blog1969 (10) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ,011,/-. He received in part payment Rs. 22,011 /-, and put Phoolchand in possession of the property. Phoolchand agreed to pay the balance on or before May 7, 1951. The terms of the agreement, were reduced to writing in counter-part and were duly signed by the parties. On the plea that Phoolchand had failed to pay on the due date the balance of price, Nathulal rescinded the contract on October 8, 1951 and commenced an action in May, 1954 in the Court of the District Judge, Nimar, for a decree for possession of the land and the factory and for mesne profits from the date of delivery till possession was restored to him, alleging that Phoolchand was a trespasser because he had contrary to 'the express terms of the agreement made default in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of possession and till the date on which possession was delivered. The cross-objections filed by Nathulal relating to mesne profits were disposed of in the light of the directions given in the decree. With certificate granted by the High Court this appeal has been preferred by Nathulal. In the view of the Trial Court Phoolchand was unable to procure the amount of Rs. 21,000/- which he had agreed to pay on or before May 7, 1951 and on that account he had com- mitted breach of the contract. The High Court held that Nathulal was not guilty of breach of contract, for, Phoolchand had arranged with a Bank to borrow upto Rs. 75,000/-, when needed by him, and Phoolchand had on that account sufficient resources at his disposal to enable him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement with his Banker to enable him to draw the amount needed by him for payment to Nathulal. To prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction : Bank of India Ltd. & Ors. v. Jamsetji A. H. Chinoy and Messrs. Chinoy and Company L.R. 77 I.A. 76, 91. The High Court proceeded to decide the case largely upon the view that Nathulal committed breach of contract. But the question whether Nathulal had committed the breach is not of much significance. Nathulal was the owner of the land : he had executed no conveyance in favour of Phoolchand in the land or the factory. Nathulal had sued for possession relying upon his and Phoolchand could defeat that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; (1) that the transferor has contracted to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty: (2) that the transferee has, in part performance of the contract,, taken possession of the. property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract; (3) that the transferee has done some act in furtherance of the contract; and (4) that the transferee has performed or is willing to perform his part of the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l secure the sanction of the Collector to the transfer under s. 70 (4) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950. The first condition was not fulfilled till October 6, 1952 and the second condition was never fulfilled. We are unable to agree with Mr. Shroff that the repeal of the Madhya Bharat Act 66 of 1950 by the Madhya Pradesh Land Revenue Code, 1959, has retrospective operation. In considering whether a person is willing to perform his part of the contract the sequence in which the obligations under a contract are to be performed must be taken into account. The argument raised by Mr. Shroff that Nathulal was bound to perform the two conditions only after the amount of Rs. 21,000/was paid is plainly contrary to the te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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