TMI Blog1988 (3) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... eing to sell the property in question for a sum of ₹ 7000/- within 10 years of the date of the executed of the aforesaid document. (3) The possession of the property remained with the original plaintiff and he was to pay ₹ 80/- per month as rent. (4) The Municipal and other taxes in respect of the property were to be paid by the plaintiff. It appears that while the sum of ₹ 7000/- so raised was expended in the treatment of his son by the plaintiff it was of no avail inasmuch as the son died of the ailment notwithstanding expensive treatment given to him. Nearly 10 years passed. The deadline for getting the sale deed executed from the defendant on the expiry of 10 years in pursuance to the agreement of sale was approaching fast. According to the plaintiff he personally contacted the defendant and made a number of requests to the defendant to fulfil his obligation by executing the sale deed. But the defendant refused to honour his commitment. Five day before the deadline that is to say on 11.8.1977 he sent to the defendant who was residing at Ramnagar itself a notice through his Advocate by Registered Post calling upon him to execute the sale deed in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that he had gone to the Sub-Registrar's office and had remained present thereat on 16 8.1977. His main defence was to the effect that the plaintiff had no funds and he was not ready and willing to perform his obligation. 3. The trial court came to the conclusion that the plaintiff did not have adequate funds to purchase the property. The trial court did not record a specific finding on the question as to whether or not the defendant had remained present at the Sub-Registrar's office in pursuance to the requisition made by the plaintiff by the registered notice and by the local telegram five days in advance. The trial court dismissed the plaintiff's suit holding that the plaintiff could not have been possessed of ₹ 7000/- on the deadline stipulated for performance mainly on the ground that he was a poor person who could be earning ₹ 200/- or so per month and could not have made any saving and that he had not produced his passbook (which he was never called upon to produce by the other side or by the Court). The Lower Appellate Court and the High Court successively dismissed the appeal preferred by the unsuccessful plaintiff on the same pattern of reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase the property for his personal occupation, why should he have allowed the plaintiff to continue as a tenant on payment of ₹ 80/- p.m. which worked out to 131/2% interest on the sum of ₹ 7000/-. (4) Admittedly the property was never mutated to the name of the plaintiff. If he had become an absolute owner, why should he not have got the property mutated to his own name? It is not even his case that he had ever applied for mutaion. The fact that he allowed the property to remain standing in the name of the vendor plaintiff tells its own tale. (5) The obvious reason for entering into such a transaction of ostensible sale coupled with a contemporaneous agreement to sell within ten years was that if it was not garbed with this paraphernalia and was given the momenclature of a mortgage the period of redemption would have been 30 years. This period could not have been curtailed without attracting the doctrine of clog on equity of redemption. This was obvious reason for resorting to this device. These factors clearly spell out the real intention of the parties that it was atrasaction of mortage to secure the sum of ₹ 7000/ at approximately 131/2% inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l presumption that in the case of an agreement of sale of immovable property time is not the essence of the contract and the fact that the terms of the agreement do not unmistakably state that the time; was understood to be the essence of the contract neither in the pleadings nor during the trial the respondents contended that time was of the essence of the contract. In the plaint the allegation was that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement while the respondents '. committed breach of the contract. The respondents did not set up the plea that the time was of the essence of the contract. In paragraph 32 of the Written Statement all that was stated was that the appellant did not perform his part of the contract within the stipulated tims and that the contract thereafter did not subsist and the suit is consequently misconceived. The parties did not go to trial on the basis that time was of the essence of the contract for no issue was framed regarding time being the essence of the contract. Neither is there any discussion in the judgment of the trial court regarding this point. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going away at the material time so that the vendee could not enforce his claim. Reliance was placed by the learned Counsel for the defendants on the majority view in Shanmugam Pillai and Ors. v. Anantalakshmi Amma and Ors. A.I.R. 1950 Federal Court 38 and on two High Court Judgments (i) , (ii) A.I.R. 1977 Bombay 136. wherein the principle laid down in the aforesaid decision has been followed. (Where the mortgagor ostensibly sells the property) X X X X X X on condition that on such payment being made the buyer shall transfer the property to the seller the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale : (Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale). In Shanmugam Pillai's case (supra) the Federal Court has by majority judgment taken the view that the reciprocal promise was made by way of a 'concession'' and that the compliance with the reciprocal obligation could be secured strictly within the stipulated time-frame. In the present case having regard to the facts and circumstances highlighte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to who was not prepared to perform his part of the contract, the plaintiff or the defendant, is essentially a question of fact and that having regard to the concurrent finding recorded by the High Court, the exercise to re-examine the issue on the basis of the evidence on record should not be undertaken at this level. Particularly in the context of the fact that this is an appeal by special leave under Article 136 of the Constitution of India. 136. Special leave to appeal by the Supreme Court- (1) Notwithstanding anything in this chapter, the Supreme Court, may in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in Clause (1) shall apply to any judgment, determination, sentence or order passed by any court or tribunal constituted by or under any law relating to the Armed Forces. There are many answers to this argument. Article 136 of the Constitution of India does not forge any such fetters expressly. It does not oblige this Court to fold its hands and become a helpless spectator even when this Court perceives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes. The Court sits in Benches and not en bane, as the American Supreme Court does. Indeed, even if the entire court were to sit to hear every one of the eighty thousand matters which have been filed this year, a certain amount of individuality in the response to injustice cannot be avoided. It is a well known fact of constitutional history, even in countries where the whole court sits to hear every case, that the composition of majorities is not static. It changes from subject to subject though perhaps not from case to case. Personal responses to injustice are not esoteric. Indeed, they furnish refreshing assurance of close and careful attention which the judges give to the cases which come before them. We do not believe that the litigating public will prefer a computerised system of administration of justice : only, that the Chancellor's foot must tread warily. (emphasis added) 8. On carefully perusing the pleadings and the evidence and also the findings recorded by the Courts below, we are fully satisfied that the trial court was entirely in error in recording a finding adverse to the appellant-plaintiff on the ground that the plaintiff was not ready and willing to per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to the property. It is true that Dwarika Prasad Singh said that his father used to keep accounts. But no attempt was made on behalf '. of the appellant ta ask the Court to order Dwarika Prasad Singh to produce the accounts. An adverse inference could only have been drawn against the plaintiff-respondents if the appellant had asked the Court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the Court, and in the circumstances no adverse inference could be drawn from the non-production of accounts. But it is urged that even so that the accounts would have been the best evidence to show that maintenance was being given to the widows and the best evidence was withheld by the plaintiffs and only oral evidence was produced to the effect that the widows were being given maintenance by Basekhi Singh. Even if it be that accounts would be the best evidence of payment of maintenance and they had been withheld, all that one can say is that the oral evidence that maintenance was being given to widows may not be acceptable; but no adverse inference can be drawn (in the absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount ' had been raised by recourse to this transaction had died. No question was put to him whether the entire amount had been spent for the treatment and in payment of other debts etc. No question was put to him about the extent of the income of his children from labour work. No question was put to him as to the amount of his expenses. Notwithstanding these salient circumstances, the trial court came to the conclusion that the plaintiff could not have saved the amount. The Lower Appellate Court and the High Court also mechanically confirmed the finding. The real test as to whether or not the plaintiff was ready and willing to perform his part of the contract was for the defendant to call his bluff, in case it was a bluff, by remaining present at the Sub-Registrar's office on the appointed day that is to say on August 16, 1977 as he was bound to do if he on his part was ready and willing to execute the sale deed. In fact the lower Courts ought to have considered whether the defendant himself was willing and ready to perform his part of the contract by executing the sale deed in favour of the plaintiff in discharge of the obligation undertaken under the agreement of sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to perform his part of the contract and had deliberately abstained from remaining present at the Sub-Registrar's office on the last day for performance though he was called upon to do so by the plaintiff within the stipulated time. Regarding receipt or non-receipt of notice, the defendant says: ...I received the notice after the limitation expired. I do not remember when I received it at the moment. That notice was brought to me by the postman after the limitation expired. I did not give the plaintiff any reply to that notice. I do not remember whether the notice was of 11.8.77 or not. Ram Nagar is 18 miles away from Kashipur. From Kashipur to Ram Nagar or from Ram Nagar to Kashipur it takes about 3, 4,5 days to get the registry delivered. I do not know whether the telegram is delivered the same day or not. I did not receive the telegram of the plaintiff. I do not remember whether I had specifically stated this in mv written statement or not as to whether I had received the telegram of the plaintiff...when I received the notice of the plaintiff I was not ready to get the sale deed executed because the limitation had expired. (emphasis added) 11. The underlined p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and that he merely wanted to defeat the claim of the plaintiff by refusing to remain present at the Registry on the day on which deadline for conveying the property was to expire, that is to say on 16th August, 1977. The trial court has shut its eyes to this dimension of the matter. Surely the plaintiff cannot be expected to do more than what he did. Admittedly he had orally contacted the defendant and by two notices conveyed to him that he would attend the Sub-Registry with the money and that the defendant should remain present at the Sub-registry. It is established that the plaintiff had gone to the Sub-registry and remained present there. He had also made an application to make record about his presence in respect of which documentary evidence in the shape of receipt issued by the Sub-Registrar's office has been placed on record. This part of the plainitff's evidence has not been disbelieved by the trial court or by the Lower Appellate Court. Apparently therefore, the plaintiff had done everything in his power to perform his part of the contract by requiring the defendant to remain present at the Sub-Registry and by himself remaining present in the Sub-Registry. The de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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