TMI Blog1978 (2) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 42,999 and a further sum of ₹ 500 if there be an excess land of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the High Court preferred by the respondent vendor was barred by limitation and the vendorhad 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration 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 vided that (1) time was in equity originally of the esse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under the contract and is merely claiming completion of the legal estate. Reference was also made to Williams v. Greatrex.([1956] A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withal 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 ₹ 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 ₹ 45,000/-. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terjee 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 perform her part of the contract. It is enough if theplaintiff 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(A.I.R. 1965 Calcutta 45.). Undoubtedly, the question would be, 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 raisethe money. Reference was also made to Bank of India Ltd. v. Jamsetji A. H. Chinoy and Another(77 I.A. 76.), where it was held that the plaintiff seeking to prove that he was ready.and willing to fulfil his financial obligations has not necessarily to produce the money or to vouch a concluded scheme for financing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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