Karnataka High Court
C.Nazeer Ahmed vs S.Jahan Ara on 9 February, 2009
Bench: K.Sreedhar Rao, S.N.Satyanarayana
,~
IN THE HIGH common KARNATAKA AT BAKGAIORE
DATED THIS 28??! DAY? OF '-7 U1-Y 2000g'=._
PRESENT :' "
am Ho1w°eI.E MR.JU$'1'IOE TIRATI-I
JA H BM
REGULAR Erase AP:15fiA_§Ia "§§'e
BETWEEN ':-'-
o.Nazeer Ahmed. e e .
S/e late Kareem Sa;'aeb:,e._' "
T aged' 591yeara'.'-- " '
* . esident' or Ratne§i.e;:?ifReVe§i g.;M /
- -~ . 'Gh1emagalur.H'_V_'- . 1-
A -~e-Appellants
< Byfisrioieareen far 7 Ie e " .
_, , .4: 5.'¢_.i''¢kS.H,He'gg1eee''Kafiave ,-- Adv. , )
A. N
S'aJ'ahan':'A'ra, " ' A
AW/e S.--AVb'3.fi~;.._ 5.'('ye.are,
Ghjic kmagalur .' « = V
' -V _2By, her Power of Attorney. holder
"and tniehVand'..S.A.b id, * ,
' 1ateg;K;Khae11qe,
€ib;ielna:.ag9.1ur'.~ ' '
k .. . .Re spendent.
A (V..1Byj;Sz'1.B.Manohar, Adv" ) .
.A T R---.F.'A-.;£i1ed U/£3.96 of GPO,' against the ;jud§men1:
and.' decree dated 22-V-12-'I990 passe in 0.'S'.'Ko.76 85
- _ on the file of the' Civil Judge, Ghicluaagalur, decree.»
'.133' the emitter epee1f1c'eperformence, etc., A .
, , This R.F.A..eom1ng'on for hearing, the sane
having been hearei 'and reserved for pronouncement of
~ ' J'u_dment,- Justice T.S.Thakug delivered the following:
"am HOE'B1}E nm'.JUsa:I§E
nfiw
2
JUDGMENT
This is -a defendant'e apmeal a§m;net.n the_"
judgment and decree baeeed 1b? "the Court pf Civii Judge, Chickmagalur in a 7euft": Fcr",:epe§ifie performance filed by the respondent; VTheheQntroQersy_' arises in the following circumetances¢w_h' By an agreement dated 3rd ef"§eeember 1982, the defendant in the suit and'ep¢eIlent*herein agreed to eell in faQegWiL§f"theTplaidti+tereepondent Certain immovable the schedule to the agreement rer e tetel Ceneideretion of Re.3,25,OOQ/W. A sum » efh -$e;$Q}Q§C@€= wee received by the defendanteselter at2the7 time of execution of the
-.agreenent while' e further amount of Re,30,000/~ was In. to; he ihaidv by the purchaeer within 45 daye hthereefter} :H;The 'agreement provided that the remetning.eeneideration of Re.2,75,O0O/W shall be 'rpaid tn the seller at the time of registration of the ige§1e;_dé§d within six monthe from the date the :],edeitional amount of Re.30,000/~wee paid' It is _not H'=dieputed that the appellant~eeller received a sum of Vhmore than Re.5O,OOo/W in instalments at different 3 points of time. The amount eo received was sought to be forfeited by the eeller in terms ef a netiee dated' 7th of September 1983 eent to plaintifffpdreheeer; in dh' nwhich the eeller accueed the pateheeet of teiihfe te pay the balance ameunt end. to 7ba§¢*°tfie_fee1§ifd§éd executed in her favour. 'The purehaeer eromptiyfieentad a reply to the said notice, in which ithei allegation that ehen had failed pto per the balance emount and have the eale deed executed in her teveur was denied. 'it wee also aileeed that the ewecutien oft the .eale deed and :the_ eekindh bf uthev final payment were poetponedmtili"the ended? Merchf1994 at the request or the 1.ee1leAr'ivi'for VA:theTr?eeeon" that he had not r.5.1,1 am of Maya '1983_iiwhenJ"yhe received at sum of ,Re.15,O0O/eucceededVinwdetting the tenanted portion whof wthehdeuit upreperty vacated from the tenants in ir_octwpetion;d*Thie poeition was denied by the eeller, who asserted in"a rejoinder sent on 21st of $eptember 1983d that there were no tenants in occupation of the i'-4Vpropertyfand that the eame being in_ his poeeeeeion feeuid, be vacated within one week from the date a ~lIdemend to that effect was made by the purchaser. ""$ufticec iti to eey that the positions which the partiee took made a suit for specific' performence 4"' inevitable. In the written etatement filed by the .aPPellant~eeiler eeveral contentions 'were«f.reieed besides a challenge to the agreement eneeuted between 1 the parties on the ground that it reqdired the setter» to' perform an 'act impossible ef"eerrorman¢e vii», evicting hie tenants within eix menths.i_ {TheH£triale Court framed eeyen ieeuee *in. ail)' while deciding ieeue No.1, it held that theideleintiff nee ,at all timee ready and willing te5p¢gFerm her part ef the .eontract, Ieede«No;2 wee eied decided in favour. of the plaintiff~ndrcheeer, withi the finding that the defendant had sgye§q~£§ rreeeiee the final' payment before the "end df Mereh 1994. while deciding Ieeuee Noe.3 ito'-6;~_the_iéeUrt= below held' that the defendanteeelierg hadV agreed to" evict. the tenante .3' befote the redietretion of the eale deeds and that .the 'piaintiff was entitled to a decree for specific "perfdrmeneedf The additional issue' relating to the veLidity~deti the agreement between the wartiee, was V_eleo'de¢ided ageinet the defendantweeller and 'the Qfedit decreed, aggrieved whereof, the seller~appellant thee Apreferred the preeent appeal as already noticed '""eerlieri 5 Appearing For 'the appellant Sri Vemareeh strenuously argued that the agreement that time was, the essence of the (agreement executed betweend the d parties. He laid considerable etrees on the terms incorporated in the agreement. especially. bera5iO thereof, "which according to him did not=enqisege§any_i extension Fort payment of 'the _baience' money and.' consequent registration of the eele deed beyond seven months from the date Fixed f5r'me9ment of the sum of 'Re.30,000/~ under pareeé of the egreement. He argued that the failure ef_ the upurchaser fito arrange the' payment of _th¢;Vb51an¢§rtém¢ufit' would result in an
-automatic cenceiletion'of the agreement, which wee, according' to .the* learned Counsel,, a clear enough indication gthat rtime; was 'the eseence of. the _ agreement» - fiayment of the balance amount not having h. been made within the period stipulated under_ para~1O 'cf ,thed agreement, ,theQ suit filed by the purchaser could not heye been decreed. The finding recorded by ethe'Courttbelow in regard to Issue No.2h was also :assaiiedN on thei ground that the eeme was not efisuceorted b? any evidence.
6. The legal position as regards time being ethe essence of contract for transfer ofjwimmayeble property is fairly well settled.
presumption is that time is not the essenee_of=such contracts. The mere fixation tofq a period. within which the contract may have te be performed else doee_f not make any such stipulatien as the essenee of the contract, The intention ts treet time as the essence of the contrast may ;h§a¢§§+ , be; ievidenced by_ circumstences__£het gfé strong enohgh to displace the initial presJmeEi§h_-__!Eygn.:e' stinulation tin the agreement ithetistihe<fiis~the essence of the contract has to he fees a;$fig.Qi§h _ether' provieions of the contraotu to' deternine Whether the completion of the transaction within the time specified was intended to ~, be a fundamental requirement.
in JAMSHED iKHODhRhM. IRQNI .vs. L V BURJORI Eenewiieenxi been 1915 Privy Council es], the judicial veommittee ef the Privs Council was examining thev fiprevisiens of $ec.55 of the Contract Act in the .Qcentext of the law of equity prevalent in England as .j_reeeres,contrects to sell immovable property, Their "~lerdships declared that equity which governs the rights of the parties in case of specific performance HTheV'iinitialu' 7 of contracts to sell their estate, looke to the eubstance of the agreement and not its_ letter 5in; order to ascertain whether the Pertiescfrealir_i' intended more than, that the traneactiong gpodldf be completed within a reasonable' time. "glTheg"Cedrt. declared that equity_treated the importance *of §time;r limits for performance 'of .contracts as being subordinate to the main purpose of Wthe parties and snecific performanceé '*couldddE, be enjoined 'notwithstanding that from'the" pointy of View of a court lot :taw_:§fi§ ,¢pntract knee fiét been literally performed by the plaintiff as regards the time limit specified. T"the fifollowing oassage'is in this regard inetructive={ V I i u ' "S,5$V'doee Tnot lay down any principle which differs from those which_ obtain yonder' the=nlaw_ of England as regards . ' contracts to sell land. Under .that law , *, equity,*,which! governs the rights of the * 'parties in cases of specific performance. ['o+a contracts to sell real estate, looks' ."not at the letter but at the substance of »_the..agreement in order to ascertain "whether the parties, notwithstanding that they. named a specific time within which .l completion was to take place, really and 'Win substance intended more than that it *,_should take gplace within' a reasonable time;. The special jurisdiction of equity 'to disregard the letter of the contract in ascertaining what the parties to the contract are to be taken as having really é .
"«.ftHerunvEDI .vs. D > > 8 and in substance intended as regards the »t. . time of its performance may be excluded ,_~f "
by any plainly expressed stipulation.g1' ""
Prima~ facie, equity treatsw. the , A importance of such time.limits- as being .__ , subordinate to~ the main purpose of they _ ' parties, and it will enjoin Isbecific ."
performance notwithstanding that from the* point of View of a*x$ourtg_o¥ Law the , contract has not been i;terally,berformed"W by the plaintiff as regards the" time limit specified.f V T *u"r. "-- ' 'Following the above géeieionu the supreme Court in PonnrnxnnvaennnbxttnxiénD*ornEnsW§ve. pntnnxswnnx Nnonn Lain ass? sc eeej3[depiered,Jthat fixation of the petiod_ within whioh eontreet is to be performee does not make time as the essence of the contract nor could the default clause in the oontract,evidence the »intention-ot"the parties to make time as the essence. h7Circumstantes suffioiently strong could however .@disb1gcey*Cthe"_ ordinary presumption that in any contract for seie of land a stipulation as to time, V _is not ,§f-fessence.h To the same effeot is the' u"%y&eoisionN:of the Supreme Court ,in 'GOVIND PRASAD h=_h"1§?7 SC 1005], where the Court observed?"
HARI DUTT S5-HASTRI QND ANOTHER [AIR~ 9 "The fixation of the period within which 'the contract has to be performed does' notfl make . the stipulation as to time cthed essence of the contract. when a contrast ,_ _. relates to sale of immoveable property it Vf will normally be presumed that the time isf, not the essence of the contract. **.The'g intention to treat time as-the-essence of v_.
- the contract may be [evidenced A'bYV;_ circumstances which should be sufficiently f strong to displace the normal cresumption"
that in a contract .of, sale_ of :'land_ ,o stipulation as to time is not the3essence""
of the contract." V ' * i" ' Refe*9"°e mix a1f~s..oJ'. . HIND CON$TRUCTIEON ;co%~nf:i§:<;:ci*oRs .:'.~'sr~ PRQPRIETOR BHIKAMCHAND Max ' L ,R 's .Vs .. arms:
ow M'aHARa--eHTAF§a_Vi" it 'e«c....572o], where their lordships held whether or*not time was the essence of / the contracts would' essentially depend upon the intention ofd the 'parties and the terms of the ; contract» The Court observedzw
-- "Even _where the parties have expressly 'providedathat time is of the essence of the contract such a stipulation will have to be read along with other provisions_of A the= contract and such other provisions , 'may, on construction of the contract, _x_exclude the interference that completion ". or the work by a particular date was 3 intended to be fundamental, for instance, if the contract were to include clauses providing for extension of time in certain contingencies or for payment of 10 fine or penalty for every day or week the .c work undertaken remeine unfinished on the.".
expiry of the time provided in . thej'e ~ contract euch claueee would be construed "ge, as rendering ineffective the expreeeV»_' provision relating to the time being ef *' the eeeence of contract." .»wi. ' '*' In eM'r§ i CHQND RAN]: ('deé~dV_) eer"a,,_Re._,i' KAMAL RANI (dead) er L.R_ss. [m:_r_:_2"-1v99.3_ ec" ~1742]f% also, 'the legal eoeition summed up in the eerlier decieione was reiterated with the following ebeeruetione:~i " In the caee[ of ,Sale 'ofM'immovable propertyu there 'is n «breeumption ae to time being the_eeeence"ef_the contract. Even if it ie not of the essence of the contract the-Ceurt may infer that it ie to be performed in a reasonable time if the conditions» areq"<' (1) from the express _terme of"the contract; (2) from the nature of the_property: and (3)'from the e,eurrbunding circumstances, for exemple;V the »object of making .the V".vcentrect;?
The question then ie_ whether the .agreement ik'executedVibetween. the parties in the instant case 'ltreeted completion of the eale transaction within a d"period of six months from the date specified therein iA,uee a fundamental requirement.' The agreement doee not eey-so in so many worde. whet was argued on .behalf ..._.. _. ..._<_..,.. ,,... , .. . -.r..,._J_.. ~:«-.- 11 of the appellant was that the absence of a specific stipulations notwithstanding, the agreements sufficientlfi reflected the intention of the §a%£:¢s:V that the sale transaction shall bee finalised. within "
Vthe outer period lot seven monthsmftDmg£h¢'defi$_that additional wayment of Rs.30;Q0O/?'ie\made.in terms ofi Clause 3 of the agreement. '*,lt is =ata this istage useful to 'extract clauses 4"and lo of the.aoreement upon which Counsel fok»fihe.a9fiellantLolaced reliance ' in eupport of hie_submissions,_s'l" V. V4.The%"dkfiemaining";.consideration" of Rs.2,75,0QQffw(Rupeee_ twofi lakhs seventy five thousand)» to be paid at the time of ' registration within six_ months from_ the date of second payment or Rs.3O,OOO/W said above.
10; «.If- underu any' circumstance the purchaeer could. not avail of the balance of consideration within the time fixed in para_j4 supra,.[the purchaser has to pay .ihterest on the balance at 6%. per annum Tovetfl the 'extended timevand the extendedv 'n time will not be more than one month at 8fiYWrate: I in default of-this condition, 'fthemagreemeht automatically comes to an " end."~Fa'* ' Vax._ It? would appear' from the above that although, " the parties had stipulated'the period within which i>,fithe* remaining amount of Rs.2,75,000/~ was to be paid V"wlbt=by the purchaser, there is nothing in the said H12 stipulation to suggeet that the same was fundamental to the completion of the transaction' Just "heeeuee the agreement containe a etipulatien as to the §§+1§a * within 'which the transaction _ehould5 be fiompletedf'. cannot iteelf 'make time as }the»ieeeence* of: the contract, agreement did not envisage exeeution'of'e_Eee1eW deed ,beyond the period of eeven menthe from the date the purchaser paid the additionei§sum"5fLRe,30,00Q~/under Clause 3 hee not impreeeed us, %A Careful reading of Clauge 10 'W¢ui§?h$55" €§heth:the*meeme deale with a situation in whieh the ép¥¢h§$é§ ie. for any "reason unable Uto*4ef§en§e the beiente of eale consideration within the time etieuietedQ ' The clause does not necesearilyr imply Wthetg time for oompletien of the transaction wee the eeeencev of the contract. "ef*Ih»e09IQD<.PResAo. CHeTURVEDI ;ve. HARI DUTT eHnsrRi Qua Anerwte [AIR 1977 sct1oo5] (supra), their .lordehipe were examining whether a stipulation to the .h¥e¥fect thet the purchaser "must get the sale. deed 4 executed within two months ie., iupto 24th of May The argument :that *cieuee .iOh of itheh 13 1964" could constitute a stipulation making time; ee the eeeence of the contract. Repelling the areument 'their lordehipe observed thue:~ The'relevant clause is cleuee r4 Mwhich aj provides that the appellent_muetgget=theuE Y_A sale deed executed within two menthe di.e..=.'t upto 24th of May, 1964, and in oafifi the appellant did not meet the; eale7 fdeed , registered within two "months, then "the"
eerneet money amounting to Re.4O00/4' paid by the appellant ehellfcetend forfeited without eervingvany'ndtice¢ V"uThe cleueet further provides _ thetr "in 'ucaee the reepondente in acme »'way V evade thee execution V or the xeale, deedt then the appellant will be entitled to-cpmpel them to execute ,the sale deedrleqelly and the reepcndente?ehall beg liable. to pay the coetei 'ahd'"Vdemegeeg_ incurred by the ' appellant I It ie,"eettledf law that the fixation: of sthe ;meried»within.which the contract hae to be performed does not make the etinuietion as to time the essence of the,ccntract{r <unen a contract reletee to sale _cf immcueeble' property it will normally» be presumed that the time is not ' the eeeence~of the contract;
- It may also be mentioned that the language ¢_ used in the agreement ie notv euch ee to .. ~indicete' in unmistakable terms that the my time ie of the essence of the contract,"
x'rg The Trial Court was therefore justified in «'q_ _j_heIding that time was not the eeeence of the contract We ' =.1n the instant caee, That conclusion is supported Vheven by the conduct of the parties, which would be a $1.
14 material circumstance for discovering A the_,_true intention of the partiee in the matter of fixation of time for making of payment and completienfef;the_ transaction. It is at this stage pertinent tel refer 4' to Clause 3 of the agreement, flhieh;reed$'eecunder=? "In pureuanee of thieifa§reementi'athetl.V seller and the purehaeerl eevenantu ae followezw K5 * . .. V'*n * The eeller thie day Rhee received Fan amount of Re 20,000X~ '(Rupees "Twenty' thoueand only), as advanee'2 from the Purchaser, towerdeigeele 'eeneideratien. The purchaser has to may Re;30;OQG/(Rupeee Thirty thoueend}"within_45 deye from thie date," ,;m,'. L 9 ; 'vw * If time was inten¢ed'to he the eeeence of the I contract; thejqueetienfef the eellerwappellent herein accepting' any" eaement 'heyond the period of 45 days etipuleted_in_fiieuee"3 would not arise. It tie not howefierl.dieDuted' that the' payment referred to in iCleQgei3*wee not tendered by the purchaser within the '_per:5efa§rT44s; days as mentioned in the clauee ' _ ektrectedtebdvei The eaid amount wee peyable latest 'V by i8thLet January 1983 when the stipulated period of h'e45;daye" would expire. It is 'evident from the 4i, endorsements made by the seller on the agreement to R"-,meell~Ex.P1 that a sum of Re.1O,OOO/W wee received by him towarde péyment of Re.30,000/~ on 27th 5? January 15 1983 Followed'by e further amount of Re.15,000/e_paid on let of February 1983 and yet another insteImen£'pf Re'.15,00.0/paid to him on 5th of May 1983._=:._T'he'eV.'i§:end'e1h and reeeipt of these Payments, which in terms eh» u Clause 3 were required to be made hefofe the 1$§hD_of January 1983\clearfly signifies thaigthe perfieshnéqef, treated the period etipuleied For' peynenf"o¥ the"
money or completion of the sale tneneaetien_Eo be the essence of the eontraet)_ $o;puehhee;_ the: pufchaeer V hae tendered a further eeh:ef°Re}iQ{0OO/on 14th of I June 1983 altheqgh he_wae9inWhefme ef the agreement not fequiféd "he" meke any heiment in exceee df~what "was payable in Eefmenefietiaueevé of the agreement. There is zQe£' enether angle «from -which _the queetion can n be' hahb}oached_" According. to the
--.A.¢plajv5:_n':ti;:Ee1%'"thexde'Fendant had not till 5th of May 1983 .7,beeh abyevte get the tenanted portien of the properhyh Qeegteehffemheihe tenante." éince delivery 'of »poeeeeeienu of the tenanted part of the pvoherty was &'", a;ee ene of the conditions, eubject teLwhieh the sale hhfiraneeetion was to be finalised the heefendant had "haecording to the plaintiff came Ferwerd with a '"fHhhopoeal to extend the period for final payment till) 16 the end of March 1984, which oropooal the plaintiff had agreed to, no matter the latter was alI7htime$ ready and willing to complete the transaotionQa Tho, trial Court has upon appreciation_~"
adduced, come to the oonoluoion that théhplaintitftn version about the extension of_timé_fixeojfor'paymontu of the balance amount had *hoen nrovodA75xgfhé'honlQ' criticism offered by the annoliant ogajnst the aaid finding is that ifa?théreg'téa@i}*_was Many ouch extension, than plaintiff §u§ht*£§7ha§e got the same recorded infi thou formi=of"=onowénoorsemont on the agreement sifigagaéghotguieatghg .tho same oral and at large.,~?heroEi§$findoodrno"douot that an endoroement extand:i.._nQ--. payment of the balance amount oouid havohheontmaoo in which event it would have,--furniéhod» tho best evidence in oupport of the "aextan3ion7yet juét"bocau$e "no such endorooment io .W,found Non thoWagreement would not in itoelf mean that arréngoméntl In the lioht of the material placed on "Kuhrooord*and the facts and oiroum$tances_of the case, httho_Eplaintiff's 'version that the period for payment ' on the balance amount was extended at the request of be t Wthe defendantwoeller cannofiébrushed aside, ofhuhevidenoeu tho partiéo goould not have arrived at any ouch"
17 ' The next quaetion.then is whether the plaintiff waa ready and willing to perform his part "d%»jtae_ contract at all material timee; Et"waagargued_onfi behalf of the appellant that the tplaintifF;"flidH,ndt have the necessary wherewithal for payihé the'balaneeL amount to complete the Vtranaactienidfl 'allaimilar contention urged before the~tniall¢ourt*maaf repelled on the basis of matetialtaddueaflflfitkthe purchaser to show that he had the ramuiaita %é;§a¢¢g$ from which he could raiaat the ibalance lamount payable to the appellant3aellerl .wé age fig errdr or perversity in the reaeoninp égivenhrbt "the; trial Court in thia regard, =The material addueed in the form of Fixed Deposit xreoeipt "held; by the plaintiff, the aala A proceeda ot Ra;73,0uO}» of Premier Padmini Car and i<,thaf° gvikgs 'taabr Certificates amounting toL d2iRali,1OgOuOflelearly established that. the plaintiff hadV the iramuiaite reaourcea from out at which he could very eaaily raise the balance amount payable by .i*_ him, Vihe contention that the plaintiff did not have llhard cash available with him for payment' haa' not *.iH' impressed ua, b what ia important ia.not whether the plaintiff had the amount in hand but whether he was § u;.----+**5.W;' 1 .w~:
'arejeehedMonz ye£'"enother """ ground. 18 ready and willing to perform hie part or, the Ieetablieh his contract" To reaa:nees~C« and willingness, the purchaser is not requireeiteiereeumea the money or toh VOUC" a e¢?Vc}Vded":5themeu fiéra financing the traneection. preor_§r;¢heéh¢§§a¢;fig_£¢"
raiee er generate findinge.neceeeery fer} eomeL§£§nQ{ the eale ehould suffice. "The deeieiene or fihe Privy' council in BANK or 'INDIA ,urb;.';vs. "JnMsErJ: A,H. CHINOY AND Maeses.'=éH:N0r§gN55¢n}~(eIR 1930 PC 90) and' NATHULAL A,ve. n@H¢QLCHAHDi {Axe "197o sc 546] authoritatively feetfle 'ihe' Iegelf position in that regard.
Ehercenientibn that' the non payment of the balance *amcunt= by .£he hplaintiff weuld defeat hie claim=fer'a decree rorhepecific performance must be The agreement G VEeexecutedhhbe£ween the parties provided- thatV the appellant?eeiier shall hand over vacant poeeeseion of the 'echeeuled property free of encumbrance including hhq the tenented pertion which shall be got" vacafled for «'deli§ery to the purchaser before registration. =flmU Ciauee 7 of the agreement is in this _regard relevant, which reads as under:w\ p.
19 '"The eeller has to hand over vacant ;Vd possession of the eohedule property ffee,}.t of Vencumbrance, thee tenantedv portion" _ g ehould aleo bev given vacant ooeeeeeionj.d»fl before registration." '3 V The defendant had not adrnzjfttedélfv obligation in regard to the_eviction of_the"tenentedH 'portion of the edit propertyfwb That'afeiIufe" wae,h according to the pleintiff;.the main teeeon why the eale deed could not be executed end time for payment
- of the 'belanoe_ extended.*ti1lhdMe%oh$ 1984. The defendant'e fce§¢":En7L"thied*hregerd has been \contradicto%y,7od in, the >fejojnder "dated .21et oft Septembet"19é¢wE§@D4"sent by hih to the' plaintiff'e noticegfi the. defendant had made a epecifio aeeertion that thefe,were" no fitenente in occupation of the propeftyxagfeodhtto hoe' eold. The defendant could, ."ecco¥dih9 "to the """" "notice, vacate and hand hover Epoeeeeelon_ as .the same was in hie occupation and in the oocdoetion of his relativee.e The following-lines t. are in this regard relevantfiw _ "In fact my client had indicated to» Fyour client that he could vacate and hand , over vacant poeeeeeion within one week
-- from the demand made by Your client. Beeidee no tenants have ;occupied the 'property agreed to be sold. .The property is in possession of my client and his ~olose realtione.", - r
-.
20' The above assertion ie clearly oppoeed Ate uthg » stipulation contained in paraf7 of. the eereement'= "
extracted'earlier.
In the written statement fiied by hin glee the' defendant took a c0WtradiCt0fVri$tandI*-_.Thie is evident from the aeeertien nadé in Paraw4, where he etated as under:: '¢n, z "It 13 'faleel that thiefdefendant had agreed ~in fthe*'3aid gagreement dated
3..12.15982."*.t"hes--tbhejf--wcmld e-virzzt the tenant Shafiulia who ievrunniné hie bueineee of Electriefi Inetaiietion~m~Contract work (hetiona1g,€lectrieals)-- or that the defendant'e";eon#in*lew and hand over the vacant poeeeesion before regietration of. the'eele deed}? M" i =2 In Peremldfei" however- he teak e cempletely Vedifferent" steed and admitted that a portion of the suit preperty nee tenanted, which the tenante had not 1 bacatedzeeehite the efforts made by the defendant"
i9 The assertion runs thuerw _A "Admittedly, one Shafiulla and deceaeedv eon~inwlaw of the defendant are and were /the tenants of the portions of the plaint echedule property under the defendant, $ubsequent to the demise . of L the eonwinwlaw of this defendant, his heirs 21 are in possession and enjoyment of the a.; same. AAThe .agreement in question, gt stipulates that the defendant ehouldd"--;,T. evict the tenante and hand over vacant %.'« poeeeeeion 'within 6 monthe .fromA";* I?.1.1@83.' The defendant madew "all * attempts and could not evict the--tenante"
and as euch. he wae unable to execute the V*v sale deed and hand over vagag£¢QQ§§ee§iong~c of the olaint schedule prooerty;"
h(emPhaeie provided?» * 'In his own statement befcre the trial Court, i_the defendant admitted %thath5thei tenants were din occupation of .a part of the euit'premieee, which he .hadVe?ail@d,"fiQ_iget".yacated :or .delivery to ' the \ plaintiff:V The fionflictihg etande taken at different stages tapartitethei admitted position ie- that the tenants were in occupation of a part of the. suit premises, iwhichVtthe defendant had undertaken to get ~.yacated, in which attempt he had failed, A There was A*athereforec e vcomplete failure' on the part of the defendant in diecharging his part of thee contract; Payment »efd;the balance amount etipulated in the h'ua'agreement1wae in the very scheme of things iduev only »if:;fthe vdefendantweelier wash in a position to _ discharge his own obligatione under the agreement in u "the form Cof aurrender 'of vacant possession of the~ " entire premieee at the time of regietrationg fhie '\»_ 22 / obligation .th§ defendant Qwao at~ no otage him a position to discharge. The result was that ho voogld not demand"the balance payment from the pléintiffvflorh could the non payment of thoh balance iawount bé"*t treated as a Failure on thé watt of jthe{nbloiht$ff[ In Narwutatj .v$. M PndoLcHéNo *£AiRh;i§7o set 546}], their lord$hips were .oon$idering» aj oimilar situation, in which Fhoolohonolwéé hold liable to pay tho balance" of, the wotioet oni§iottet Nathulal had performed_hisfoo§t ofItho"oohttébt¢_ under which he had to- got tho h$m§'¢f;5:§t5+§n5e+ temovéd from the revenue«tecofdSoéfid.hi$%own"namé ontéred in the same besides} 'obtaining ,"mofmi$$ion 'of 'the competent. authotityvtovsell the orooerty; Even in CHAND RANI .us. 5-KeMAt",gAw: imfk 1993.sc'1742J, tho purchaser Vhwasftoquired to pay o sum of R$.98,O0O/W towards 'the. VH$aJe"Voonéi&3tation, which he deolined'to pay till 'such"timé-tho2$eIler'deliveved vacant posseaoion of a _ pant of the btoperty agreed to be sold and obtained 3 v tHVooLearanoé certificate from the Inoomé Tax Department, &"whThéif:lord$hips hold that payment of Rs,98,0bO~/ was *Qw" not relatablo to the' oonditiono otipulated by the hhopurohaser for makingIth@,$ameo Tho hrefusal ofL the V"e:etetement.
23 .purchaeer to pay the amount till euoh time the sexier delivered part possession of the proeertftwandd obtained the income tax clearance certificetet wee ' held to eignify that the Purchaser wee not reedy endih 'willing to perform hie part of the efifittaéttk Inn the? instant case, the. eviction of the tenante from the * property was an essential "Kcondition_€ For the completion of the sale treneaotion, The pe§ment of the balance of the pried monefi could fall was due and be demanded or the eale deed exeouted only when the said recquiremefnt §1i:~wa§ 'ear-;ié«ried_."'*"since the defendant was admittedly in no @oeitienrte:'eviot' the tenants and had" taken VHe~ stepe in thet direction till the date fikgd*for e2§§uti5n at the sale deed, he could not make *any erieyanee against non payment of the balanqe amount not could the same be understood to 5f mean =thet "the pleintiffwpuroheeer wee not ready and 'willing to perform his part of the contract; hcouneei for the appellant did' not pursue hie .u*ohe1lenge¢ to" the validityi of the agreement on the °_Qtounde urged by him in _para91O(e) 'of the written He submitted that even though one of the ultenante had vacated the premises, 'yet another had 247 been inducted in his place and that the dofendant was in' no, position 'to 'evict the tenanto_ noflfllinV occupation, which would mean that the plaintiff 555$: ' have to accept the property subjeot to rthe:@o§i3g;no'h encumbrances in the torm of tengnciégvouorta hart oft the samé.- Learned V;_flCoQh$ol_ toforh: 'fltheh* .plaintiffmre$pondent 'on instruotionolsuomittoo that h plaintiff was prepared to boy the éaid oromerty even with the encumbranqg hygferrgfif to oobove. The said aubmission is accordingly reoordeoX_htofi In_thé }%égi£}~tfii§ hméeot toils and io hereby dismissedg" but Eh" thé= circumstances without any orders as to ooété,h,' 361/ - JUDGE 'Ho .jaj§/iéoezooo