TMI Blog1964 (11) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... rnest money in accordance with the terms of the auction, the defendants unlawfully refused to accept it. On August 30, 1954, the plaintiff gave notice to the 3rd defendant and sent copies thereof to the other defendants calling upon them to obtain from him the one-fourth amount of the sale price as earnest money within 24 hours and pass a receipt therefor and accept the balance of the auction price within a period of one week thereafter in accordance with the condition of the auction sale and to execute a sale deed duly registered in his favour. Defendants 1 and 2 did not give any reply to the said notice. The plaintiff filed the suit in the Court of the 4th Additional Judge, City Civil Court, Hyderabad, on April 18,1955, for directing the defendants, inter alia, to execute the saledeed in his favour. Defendants 2 and 3 in their written- statement admitted that there was an auction sale and that plaintiff was the highest bidder; but the 1st defendant, on the other hand, denied that there was any final bid or that it was accepted. He further stated that he gave up the idea of selling the plots and that after obtaining the necessary permission from the Municipality he began to build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the plaintiff the 1st respondent, and defendants 2 and 3, respondents 2 and 3. Mr. Lakshmaiah, learned counsel for the appellant, argued (1) The appellant repudiated the contract on the next day of the auction itself by refusing to take money from the lst respondent; the 1st respondent did not accept the repudiation, but elected to keep the contract alive by asking the appellant to receive from him one-fourth of the amount as earnest money at any time within 24 hours thereof and to obtain from him the entire balance within one week thereafter; by so doing, he not only unilaterally varied the terms of the contract but committed a breach thereof in not paying the amount; having himself committed a breach of the contract, he could not specifically enforce it. (2) Time is the essence of the contract, as the object of purchase by the 1st respondent was to start a business; therefore, the lst respondent should have pursued his remedy with promptitude and diligence. It was not enough to assert his right by issuing a notice, but he should have taken steps to enforce it; his inaction and indifference for 7 1/2 months without making any attempt to enforce his right would disentitle him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capable of correction by a Court of appeal. The following are cases in which the Court may properly exercise a discretion not to decree specific performance :- I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no, fraud or misrepresentation on the plaintiff's part. Illustrations II. Where the performance of the contract would involve, some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff. Illustrations The following is a case in which the Court may properly exercise a discretion to decree specific performance :- 111. Where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specificperformance. Illustrations The First Schedule to the Limitation Act Description of suit Period ofTime from which Limitation period begins to run Art. 113. For specific Three yearsThe date fixed for the preformance performance, or, if of a contract. no such date is fixed, when the plaintiff has noticed that performance is refused. Under s. 22 of the Specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... English textbooks and decisions relied upon by the learned counsel for the appellant. In Halsbury's Laws of England, Vol. 36, at p. 324, it is stated Where time is not originally of the essence of the contract, and has not been made so by due notice, delay by a party in performing his part of the contract, or in commencing or prosecuting the enforcement of his rights, may constitute such laches or acquiescence as will debar him from obtaining specific performance. The extent of delay which has this effect varies with circumstances, but as a rule must be capable of being construed as amounting to an abandonment of the contract. A much shorter period of delay, however, suffices if it is delay in declaring an option or exercising any other unilateral right; and if the other party has already given notice that he does not intend to perform the contract, the party aggrieved must take proceedings promptly if he desires to obtain specific performance. In Fry on Specific Performance , 6th Edn., at p. 517, it is said Where one party to the contract has given notice to the other that he will not perform it, acquiescence in this by the other party, by a comparatively brief delay i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Kemp([1874] L.R. 5 P.C.A. 221) which we have extracted earlier. It is clear from these decisions that the conduct of a party which puts the other party in a disadvantageous position, though it does not amount to waiver, may in certain circumstances preclude him from obtaining a decree for specific performance. Now we shall consider some of the Indian decisions cited at the Bar. A Division Bench of the Allahabad High Court held in Nawab Begum v. A. H. Creet([1905] I.L.R. 27 All. 678) that great delay on the part of the plaintiff in applying to the Court for specific performance of a contract of which he claimed the benefit was of itself a sufficient reason for the Court in the exercise of its discretion to refuse relief. But it will be seen from the facts of that case that, apart from the delay the conduct of the plaintiff was such that it induced the other party to change his position to his detriment. A Division Bench of the Patna High Court in Rameshwar Prasad Sahi v. M. Anandi Devi([1960] I.L.R. 39 Pat. 79) held on the facts of that case that the delay in bringing the suit for specific performance was always fatal to a suit, and that it amounted to an abandonment of the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But it pointed out that where the conduct of the plaintiff was such that it did not amount to abandonment but showed waiver or acquiescence especially when inaction on his part induced the defendant to change his position, the plaintiff ought not to be allowed any relief. This case brings out not only the distinction between English and Indian law but also that waiver or abandonment of a right is not a pre-condition for refusing relief of specific performance. The result of the aforesaid discussion of the case law may be briefly stated thus : While in England mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a court to refuse such a relief. But as in England so in India, proof of abandonment or waiver of a right is not a precondition necessary to disentitle the plaintiff to the said relief, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. We have used the expression waiver in its legally accepted sense, namely, waiver is contractual, and may constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Municipal Corporation to demolish the house was given two months prior to the auction, but there is nothing on the record to show when the house was actually demolished. Some time must have elapsed between the notice and the actual demolition. The only evidence in regard to the demolition of the house is that of the 1st respondent; and it is not suggested in the cross-examination that the demolition of the house was before the auction. On the uncontradicted evidence of the 1st respondent, we must hold, agreeing with the High Court, that the lst respondent was in a worried state of mind because of the said two circumstances which might have been responsible, to some extent, for his not taking immediate active and effective steps to enforce his right. The most important circumstance in the case is, when did the 1st respondent come to know of the commencement of the building operations by the appellant on the suit site ? The lst respondent says in his evidence that 7 or 8 months after the auction he passed by the suit site and saw foundations had been dug therein and a few days thereafter he filed the suit. The appellant, on the other hand, says in his evidence that he started t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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