Patna High Court
Zakir Sadagar vs Dolegobind Ghose And Ors. on 21 December, 1954
Equivalent citations: AIR 1955 PATNA 201
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Imam, C.J.
1. In this appeal the plaintiff appeals against the decision of the Subordinate Judge of Purulia dismissing his suit for specific performance. His case was that there was an agreement to sell certain holdings between him and Dolegobind Ghose, defendant 1, for the sum of Rs. 17,999/-. This price was settled on 10-3-1948, and in pursuance of this agreement a sum of Rs. 33778/- was paid to de-fendant 1 for purchase of the requisite stamp paper for the drawing up of a sale-deed. Defendant 1 handed over the sum of Rs. 337/8/- to Ram Sun-dar Kundu, a deed-writer of Purulia, who was to purchase the stamp paper from the local treasury.
The stamp paper was accordingly purchased and a sale-deed was actually written out-and executed. After execution defendant 1 demanded the cost of registration from the plaintiff who handed over to Ram Sundar Kundu the sum of Rs. 70/-for that purpose. All this happened on 10-3-48. Thereafter on the same day the parties went to the Registration office. Defendant 1 and Ram Sundar Kundu went inside the office. The sale-deed, however, could not be registered as the Sub-Registrar was going out on commission. Defendant 1, however, was requiring money as he had to attend some marriage ceremony in his family at Calcutta. Accordingly he asked the plaintiff to give him some money in advance and the plaintiff paid defendant 1 the sum of Rs. 550/- that day. The sale-deed, however, remained in the custody of Ram Sundar Kundu.
The plaintiff met defendant 1 thereafter at Purulia and asked him to register the sale-deed, but the latter avoided registration, whereupon the plaintiff sent a registered notice to Ram Sundar Kundu to return the sale-deed, to which no reply was sent. The plaintiff then filed a criminal case against defendant 1 and Ram Sundar Kundu for cheating under Section 420, Penal Code. Thereafter it transpired that defendant 1 had sold the properties which he had agreed to sell to the plaintiff to defendant 2 by one sale-deed and to defendants 3 and 4 by another sale-deed both dated 19-3-1948.
The plaintiff also alleged that after the execution of the sale-deed by defendant 1 the latter approached him for an advance of Rs. 1000/- and the plaintiff in good faith approached Sheo Prasad Marwari (P. W. 4), as he himself had not the money at the time, to advance the said sum to defendant 1, which was done, defendant 1 executing a handnote in favour of Sheo Prasad Marwari. The plaintiff had all along been willing to pay the consideration money after registration of the sale-deed and to close the transaction by registration of the deed.
He never expressed his unwillingness to pay the consideration money or his inability to do so. The entire consideration money was not paid on the date of execution as the deed was not registered on that date. Defendants 2, 3 and 4 had purchased the property which had been agreed to be sold to the plaintiff with full knowledge of the agreement between the plaintiff and defendant 1 and their purchase was subject to the prior agreement with the plaintiff.
2. Defendant 1 filed a written statement and his case was that he was the owner of the property mentioned in the plaint. He admitted that there was an agreement of sale with respect to the said properties. His case, however, was that at the time of the agreement there was a definite stipulation between him and the plaintiff that the latter would pay to him the full consideration before execution and . registration and that this stipulation was a condition precedent.
It was clearly understood that until the entire consideration was paid defendant 1 would be under no obligation to execute the deed or to register the same. The plaintiff gave a solemn as-surance that he would pay the full consideration before the execution of the deed and on that assurance the sale-deed was written out on stamp paper. He demanded the consideration agreed upon, but as the plaintiff did not pay it and wanted to put off payment after execution and registration so he did not execute the. deed. It was altogether wrong to suggest that he had ever executed the sale-deed. He further dented that the plaintiff paid any money towards the purchase of the stamp paper for the sale-deed or towards the cost of registration.
He further denied that he ever took Rs. 550/-from the plaintiff on 10-3-1948. The plaintiff was not a man of means and he had not the sum of about Rs, 18,000/- to pay to him. As the plaintiff ' could not pay the consideration money, the deed became ineffective and it remained with him. He was in need of selling the property, however, and therefore he sold to defendants 2 to 4, defendant 2 purchasing municipal holdings Nos. L 429 to L, 431 for Rs. 12,751/- and defendants 3 and 4 purchasing holding No. L 428 for Rs. 4,249/- on 19-3-1948.
3. Although defendant 2 and defendants 3 and 4 filed separate written statements, their defence substantially is that they are bona fide purchasers for value without notice or knowledge of the agreement for sale or the sale-deed in favour of the plaintiff.
4. As has been pointed out by the Subordinate Judge, the following facts are admitted. Defendant 1 was the owner of holdings Nos. L 428, L 429, L 430 and L 431. All these holdings were in occupation of tenants on 10-3-1948. Holding No. L 428 was in the occupation of one Gobinda Kundu, holding No. L 429 was in the occupation of the plaintiff, holding No. L 430 was in the occupation of Gopiram Sheoprasad and holding No. L 431 was in the occupation of Gangaram -Lath. There was an agreement to sell these holdings to the plaintiff and in pursuance of the agreement a sale-deed was scribed on a stamp paper.
5. On the question as to whether the sale-deed was executed, the Subordinate Judge found that not only was this document scribed but also executed and that the document was executed in favour of the plaintiff. As to whether the plaintiff paid the sum of Rs. 33778/- for the purchase of stamp paper, Rs. 70/- to meet the costs of registration and Rs. 550/- towards the consideration of the sale-deed, the Subordinate Judge found in favour of the plaintiff, that is to say, he paid. Rs. 33778/- for the purchase of the stamp paper, Rs. 70/- for costs of registration and Rs. 550/- towards the consideration of the sale-deed. As to whether the plaintiff paid a further advance of Rs. 1000, the Subordinate Judge found that it was a different transaction between defendant 1 and Sheo Prasad Marwari and that this amount was not meant towards the consideration of the sale-deed. Accordingly the payment of Rs. 1000/-by Sheo Prasad Marwari to defendant 1 was not material in the case.
The Subordinate Judge, however, was of the opinion that the plaintiff did not pay the entire consideration as agreed between the parties before the registration and, therefore, the negotiation fell through and the sale-deed was not registered.
As to whether defendants 2 to 4 had knowledge of the agreement to sell to the plaintiffs, the Subordinate Judge found that they had notice of this but this did not affect them as the transaction between the plaintiff and defendant 1 fell through. He was also of the opinion that the plaintiff had made inordinate delay in filing the suit for specific performance, having filed it just before the period of limitation expired.
He was also of the opinion that the plaintiff had not come with clean hands because he had filed a 'rokar bahi' to prove that he had the sum of money to pay the consideration of the sale-deed, but the bahi was a spurious document and had been prepared for the purpose of the suit. He discountenanced the evidence of the plaintiff that he had to pay only Rs. 6000/- to defendant 1 on 10-3-1948 and that there was an agreement that he would redeem the two mortgages four months after the registration of the sale-deed and that these mortgages were to the extent of Rs. 12000/-. He accordingly dismissed the plaintiff's suit. Hence the present appeal.
6. In this case we start with the admitted fact that there was a contract to sell the pro-perties in suit between the plaintiff and defendant 1. Unless, therefore, the Court is satisfied that there was an express stipulation that the entire consideration money would be paid before execution or before registration, the plaintiff's suit for specific performance must be decreed, provided defendants 2 to 4 had notice of the contract bet- ween the plaintiff and defendant 1.
Before I deal with the question as to whether there was any express stipulation between the plaintiff and defendant 1 that the consideration money will be paid before the execution or registration I would like to deal with the question as to whether defendants 2 to 4 had notice of the contract between the plaintiff and defendant 1. In the course of the hearing of this appeal Mr. Untwalia stated that he could not seriously argue against the finding of the Subordinate Judge that defendants 2 to 4 had notice of the aforesaid contract.
He, however, at a later stage in the hearing expressed the wish to make some submissions against the finding given by the Subordinate Judge. Although Mr. Untwalia tried to displace the finding, he found himself in great difficulty, because the reasoning of the Subordinate Judge in coming to this finding was not only a reasonable one but one which could not seriously be questioned. (After discussing the evidence, the judgment proceeded:) Having regard to all this I can see no justification for taking a contrary view to that taken by the Subordinate Judge and would hold that he had given a correct finding to the effect that defendants 2 to 4 had knowledge of the contract between the plaintiff and defendant 1.
7. The Subordinate Judge found as a fact that the sale-deed in favour of the plaintiff was not only scribed But in fact executed by defendant 1. He has given very good grounds for coming to this conclusion and it would be difficult for an appellate court to reverse his finding when there is no evidence of a reliable kind on the side of the defendants to prove that the sale-deed was not executed by defendant 1. (After discussing the evidence, the judgment proceeded:) I would accordingly affirm the finding of the Subordinate Judge that the sale-deed in favour of the plaintiff was not only written out on the stamp paper for the drawing up of a sale-deed but that it was also executed by defendant 1.
8. There has been a controversy between the plaintiff and defendant 1 as to whether the plaintiff paid the latter the sum of Rs. 337/8/- for the purchase of the stamp paper, Rs. 70/- as costs of registration and Rs. 550/- towards the consideration of the sale-deed in favour of the plaintiff. The Subordinate Judge has clearly found that all these sums of money were paid by the plaintiff and not by defendant 1. The evidence of the plaintiff that he had paid these sums is supported by the evidence of Abdul Aziz (P. W. 3), Gulsher Khan (P. W. 5) and Gorachand Sen (P. W. 6), who were attesting witnesses to the deed.
It is true that the plaintiff did not take a receipt from defendant 1. That fact, however, would not by itself be sufficient to discard the testimony on behalf of the plaintiff because at that time the plaintiff may have had confidence in defendant 1 and he knew that the transaction between him and defendant 1 had taken place in the presence of several witnesses. As against this it is significant that neither defendant 1 nor Ram Sunder Kundu has come to the witness-box to deny the allegation of the plaintiff. An adverse inference must surely be drawn against the case set up by defendant 1 in his written statement. The non-appearance of these persons in the witness-box is a circumstance which lends support to the direct evidence on behalf of the plaintiff that the above mentioned sums of money were paid by him.
We thus see that not only was there a contract to sell between the plaintiff and defendant 1 but the matter had proceeded even further by payment of money by the plaintiff for the purchase of the stamp paper, for the costs of registration and towards the consideration of the sale-deed which had been executed by defendant 1, and all that remained to be done was registration of the sale-deed.
It remains, therefore, to consider whether there was failure to register the document on account of non-compliance by the plaintiff of any stipulation, express or implied, that the entire consideration money for the sale-deed would be paid before registration or at the time of registration and that the -transaction between the plaintiff and defendant 1 fell through because the plaintiff failed to comply with his part of the contract.
9. According to the plaintiff, as stated in para 11 of the plaint, the plaintiff was all along willing to pay the consideration money and close the transaction by registration of the deed. As the sale-deed could not be registered on the date of registration he did not pay the full consideration money and- defendant 1 also did not insist on payment of the, full consideration money before registration. It is thus clear that according to the plaintiff there was no question of his paying the entire consideration money before registration. In his evidence the plaintiff stated definitely that there was no agreement that the entire consideration was to be paid before the execution and registration of the sale-deed.
As against this defendant I had stated in his written statement that the agreement between him and the plaintiff was that the plaintiff would pay to him the full consideration before the execution and registration and that full payment of the consideration was a condition precedent and that it was definitely agreed that until the entire consideration was paid he would be under no obligation to execute the deed or to register the same. As the plaintiff did not pay the consideration and wanted to put off the payment until after the execution and registration, so he did not execute the deed. Defendant 1, however, did hot examine himself and state on oath his version of the agreement between him and the plaintiff. Ram Sunder Kundu, the scribe of the sale-deed has also not been examined. He was undoubtedly an important witness who could have thrown a good deal of light on the terms of the contract between the plaintiff and defendant 1.
So far as defendants 2 to 4 are concerned, it is their case that they had not any knowledge of the existence of the contract between the plaintiff and defendant 1, much less the terms thereof. The evidence on this point, therefore, is one-sided. It has already been noticed that the case of defendant 1 that consideration had to be paid even before execution, much less registration, is untrue. Indeed it seems most unlikely that a purchaser would pay the consideration money in full before the vendor had event executed the document of sale.
If the case of defendant 1 was at all true, then it seems to me unlikely that the parties would have proceeded to the Registration office for the registration of the document which had not yet been executed. The case of defendant 1 that the entire consideration money had to be paid before execution has been found to be false. Not much reliance can therefore be placed on his case that the entire consideration had to be paid before registration or at the time of registration. Much reliance, however, was placed upon the evidence of Gobindram Kataruka (D. W. 3) to the effect that he had heard defendant 1 saying that unless the entire consideration was paid he would neither execute the sale-deed nor get it registered. This conversation in the context of the witness's evidence would appear to have taken place at the Registry office.
The witness went on to say that he heard Zakir (the plaintiff) saying that he would pay part of the consideration then and would pay the balance later on. It would be best to quote the exact words used by the witness. He had stated:
"I had gone to the registry office to get back money. Dolu told that unless the entire consideration was paid he would neither execute the sale-deed nor get it registered. Zakir was telling that he would pay part of the consideration at present and would pay the balance later on".
If the evidence of this witness is at all true then up to the time that the parties reached the Registration office there could have been no agreement with the plaintiff and defendant 1 that the consideration money had to be paid before execution and before registration. The statement of the witness clearly indicates that What defendant 1 was asking for was not being accepted by the plaintiff Zakir.
I am inclined to think that this statement of the witness lends some support to the case of the plaintiff in the plaint that he was willing to pay the consideration money after registration of the sale-deed and to close the transaction by its registration. In any event I can find nothing in the statement of this witness which establishes the case of the defence that consideration had to be paid either before execution or before registration.
Further it is to be remembered that although the document was not registered on 10-3-1948, defendant 1 pressed for payment of some money, namely, Rs. 550/- towards the consideration as he needed money for his visit to Calcutta. The sum of Rs. 550/- was paid to defendant 1 in the presence of a number of witnesses. The acceptance of Rs. 550/- towards the consideration money by defendant 1 when the deed could not be registered, clearly indicates that whatever defendant 1 may have wished he accepted the plaintiff's condition that he would pay part of the consideration money then and would pay the balance later OB. On the circumstances of the present case I am not prepared to hold that there was any agreement between the plaintiff and defendant 1 that the entire consideration would have to be paid by the plaintiff before execution and registration.
Mr. Untwalia, however, argued that under Section 55, Clause (5), T. P. Act, the buyer is bound to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directed: provided that, where the property is sold free from incumorances, the buyer may retain, out of the purchase-money, the amount of any incumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto. The learned advocate argued that this section made it quite clear that the purchaser had to pay or tender the purchase money to his vendor at the time and place of completing the sale.
The time and place of registration was the time and place for completing the sale. As the plaintiff had not done what was expected of him under the law it was clear that he could not successfully sue for specific performance. Section 55(5) of the Act is subject to the opening words of the section in the absence of a contract to the contrary". It seems to me, however, that a purchaser is not bound to part with the price except on a complete conveyance to himself of the whole interest that he has purchased. In the present case as the sale-deed in favour of the plaintiff had not been registered there was no obligation upon the plaintiff to part with the consideration money.
According to the plaintiff, Ram Sunder Kundu and defendant 1 went inside the Registration office on 10-3-1948, but on that day the Registrar was to go out on commission. Accordingly the document was not registered (vide para. 6 of the plaint).. There is conflicting evidence as to the time when.the Registrar left his office and when he returned. (After discussing the evidence, the judgment proceeded;) There is, therefore, nothing improbable in the case of the plaintiff that registration could - not be effected because of the absence of the Registrar from his office, It seems to me clear, therefore, that the real reason for the document- not being registered on 10-3-1948, was not-because the plaintiff was not prepared to carry out one of the express stipulations of the contract between him and defendant 1. Furthermore, it seems to me that before a Court can definitely come to a conclusion that there was an express stipulation between the parties to the contract, clear evidence to that effect must be adduced and such an express stipulation must be proved precisely and without ambiguity.
As I have said before, neither defendant 1 nor Ram Sunder Kundu has been examined by the defence to prove any express stipulation between the plaintiff and defendant 1. In the case of -- Jamshed Kodaram v. Burjorji Dhunjibhai', AIR 1915 PC 83 (A),.it was held that Section 55, Indian Contract Act, 1872, did not lay down any principle which differs from the law of England as to contracts for the sale of land. Specific performance of a contract of that nature will be granted although therg has been a failure to keep the dates assigned by it, if justice can be done between the parties, and if nothing in (a) the express stipulations of the parties, (b) the nature of the property, or (c) the surrounding circumstances make it inequitable to grant relief. An intention to make time of the essence of the contract must be expressed in unmistakable language; it may be inferred from what passed between the parties before, but not after, the contract, is made. In pronouncing the judgment of the Privy Council Lord Haldane observed:
"Under that law equity, which governs the rights of the parties in cases of specific performance of 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 completion was to take place, really and in substance intended more than that it should take place within a reasonable time.
The principle" is well expressed in what Lord Bedesdale said in his well-known judgment in -- 'Lennon v. Napper', (1802) 2 Sch & Lef 682 (B), which was adopted by Knight-Bruce L. J, in -- 'Roberts v. Berry', (1853) 3 De G M & G 284 at p. 289 (C). The doctrine laid down in these cases was again formulated by Lord Cairns in -- 'Tilley v. Thomas', (1867) 3 Ch A 61 D. and by the House of Lords in the recent case of --'Stickney v. Keeb'le', (1915) AC 386 (E).
Their Lordships are of opinion that this is the doctrine which the section of the Indian statute adopts and embodies in reference to sales of land. It may be stated concisely in the lan guage used by Lord Cairns in (1867) 3 Ch 61 (D): 'The construction is and must be in equity the same as in a Court of Law. A Court of Equity will indeed relieve against and enforce specific performance, notwithstanding a failure to keep the dates assigned by the contract;
either for completion or for the steps towards completion, if it can do justice between the parties, and if (as Lord Justice Turner said in (1853) 3 De. G. M. & G 284 at p. 289 (C) ) there is nothing in the 'express stipulations between the parties, the nature of the property, or the surrounding circumstances', which would make it inequitable to interfere with and modify the legal right.
That is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract. Of the three grounds mentioned by Lord Justice Turner 'express stipulations' requires no comment. The 'nature of the property' is illustrated by the case of reversions, trusts, or trades. The 'surrounding circumstances' must depend on the facts of each particular case.
Their Lordships will add to the statement just quoted these observations. 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 and in substance intended as regards the time of its performance may be excluded by any plainly expressed stipulation.
But to have this effect the language of the stipulation must show that the intention was to make the rights of the parties depend on the observance of the time limits prescribed in a fashion which is unmistakable. The language will have this effect if it plainly excludes the nation that these time limits were of merely secondary importance in the bargain, and that to disregard them would be to disregard nothing that lay at its foundation.
Prima facie, equity treats the importance of such time limits as being subordinate to the main purpose of the parties, and it will enjoin specific performance notwithstanding that from the point of view of a Court of law the contract has not been literally performed by the plaintiff as regards the time limit specified. This is merely an illustration of the general principle of disregarding the letter for the substance which Courts of Equity apply, when, for instance, they decree specific performance with compensation for a non-essential deficiency in subject-matter."
Apart from the assertion which I have already stated, there is no evidence of defendant 1 or Ram Sunder Kundu to prove that any express stipulations existed between the plaintiff and defendant 1. Even if there had been any, defendant 1 by his conduct in accepting Rs. 550/- from the plaintiff towards consideration money when the sale-deed could not be registered clearly indicated that such express stipulation as may have existed between them was not of the essence of the contract and no longer existed.
Defendant 1 by his conduct in accepting a part of the consideration money even when the document could not be registered clearly indicated that he was prepared to accept the plaintiff's condition that he would pay a part of the consideration money for the present and the balance later on, as deposed to by Gobindram Kataruka (D. W. 3). I am of the opinion that having regard to the circumstances established in the present case there is no justification for coming to the conclusion that there was any express stipulation between the plaintiff and defendant 1 that the entire consideration money will be paid before registration.
10. The Subordinate Judge seemed to distrust the plaintiff's evidence that he had to pay only Rs. 6000/- to defendant 1 on 19-3-1948, as there was an agreement that he would redeem the two mortgages four months after the registration of the sale-deed, the aforesaid mortgages amounting to about Rs. 12,000/-, because this was not mentioned within the four corners of the plaint. I do not know whether it was necessary for the plaintiff to have mentioned this in his plaint. What the plaintiff stated in his evidence, however, was the result of cross-examination.
The cross-examiner, for reasons best known to him, elicited the statement from the plaintiff to the effect that on 10-3-1948, he had to pay to the defendant Rs. 6000/- and on that day he had only Rs. 10,000/- and that it was agreed that he would redeem the mortgages within four months after the registration of the sale-deed amounting to Rs. 12,000/- He further elicited from the plaintiff that he had taken with him Rs. 6,500/-to the Registry office on 10-3-1948.
If there was any such agreement between the plaintiff and defendant 1, it would not be a matter of surprise, for the evidence shows that there were mortgages to be paid up. Gobindram Kataruka (D. W. 3) happened to go to the Registry office on 10-3-1948, to get back the mortgage money. He also went to the Registry office at the time of the registration of the sale-deeds In favour of defendants 2 to 4 in order to get his mortgage money. The presence of this witness at the Registry office on both the occasions is a circumstance from which one may reasonably conclude that there must have been some arrangement by which the mortgagee was expecting to be paid the mortgage money.
Under Section 55, Clause (5), T. P. Act, a buyer may retain out of the purchase money the amount of any incumbrances on the property existing on the date of the sale and shall pay the amount so retained to the persons entitled thereto, where the property is sold free from incumbrances in the absence of a contract to the contrary. This is a statutory right which the buyer possesses and it seems to me that there need not even be any express "agreement to this effect. Unfortunately the sale-deed has been destroyed as there has been a refund of the value of the stamp paper, and no one can tell whether the property contracted to be sold to the plaintiff by defendant 1 was being sold free of incumbrances. I do not think myself that there is any reason to doubt the statement of the plaintiff in this respect.
11. The Subordinate Judge thought that the plaintiff had not come to Court with clean hands because in support of his evidence that he had the money to pay the consideration for the sale-deed he filed a robar bahi which was a spurious document prepared for the purpose of the suit. Accordingly a Court of equity would not decree specific performance in favour of a party who had come to Court with unclean hands. It had been the ease of the defence that the plaintiff was a man of no means and he could not have possessed nearly Rs. 18,000/- on 10-3-1948, to pay the consideration money for the sale deed. Therefore, the contract, such as it was, was not enforceable.
Whatever may be the comment on the rokar bahi made by the Subordinate Judge, the fact is that in the course of cross-examination the cross-examiner twice obtained the answer from the plaintiff that he had Rs. 6500/- on 10-3-1948, and there is nothing on the record to disprove this. The filing of the robar bahi which has been held to be a doubtful document certainly reflects against the plaintiff, but actually there is no proof In the case to show that the plaintiff could not have been in possession of sufficient funds on 10-3-1948, to complete the transaction of sale.
It has been pointed out by the Subordinate Judge that even to pay Rs. 550/- the plaintiff had to go back to his shop to get the money. Therefore he could not have had even this amount at the Registration office. It was, however, obtained In cross-examination from Gulsher Khan (P. W. 5) that the plaintiff paid Rs. 550/- to defendant 1 at 4 p.m. Before that time there seemed to be some doubt, as to whether the document could be registered on 10-3-1948, and it is just possible that the plaintiff may have gone back to his shop and when he returned he had Rs. 550/- which he paid to defendant 1.
In any event, in my opinion the moment defendant 1 was prepared to accept Rs. 550/- towards the consideration money of the sale-deed although it had not been registered, he was ob-viously prepared to go through the transaction whether the plaintiff had or had not actually the full consideration money with him on that date. By accepting the sum of Rs. 550/- the defendant 1 clearly held out to the plaintiff that whatever the arrangement between them may have been previously he was still prepared to go through the transaction and consequently he was accepting a part of the consideration money from the plaintiff.
In my opinion the filing of the-robar bahi which has been held to be an unreliable document was not a sufficient circumstance to deny the plaintiff his right to have the contract of sale specifically performed. I am further of the opinion that there is not sufficient evidence in the case to come to a definite conclusion that on 10-3-1948 the plaintiff had not the consideration money to pay for the property which he had contracted to buy.
12. It was next argued by Mr. Untwalia that the plaintiff had abandoned the contract as he had filed his suit on 8-3-1951, whereas the contract was on 10-3-1948. Fry on Specific Performance, Edn. 6, para, 1026, has stated:
"But the Court must be satisfied of this - total abandonment by both parties of the contract. 'The Court', said Lord St. Leonards, 'requires as clear evidence of the waiver as of the existence of the contract itself, and will not act upon less!' And in another case his Lordship said that, unless a party has by his conduct forfeited his right, 'abandonment of a' contract, according to the law of this Court, is a contract in itself; and accordingly he refused to hold a loose conversation, which Was alleged as a waiver of a contract for a lease, to amount to such a new contract."
It is true that in the present case the suit was filed on 8-3-1951, but the plaintiff had not been inactive in the assertion of his rights under the contract. It would appear that on 10-7-1948, the plaintiff sent a notice to Ram Sunder Kundu to enquire of him as to whether he was still prepared to refund the amount which he had given to him for purchasing the stamp and for meeting the cost of registration and to return the sale-deed executed by defendant 1, pointing out that assistance of the Court would be taken against him and the executant of the sale-deed.
If the plaintiff wished to abandon his rights under the contract he would have merely asked for a refund of the money given by him to Ram Sunder Kundu for the purchase of the stamp and for meeting the cost of registration. The plaintiff, however, was asking for return of the sale-deed itself, obviously with a view to having in his possession written proof of a contract between him and defendant 1. There was no need for him to have such proof if he was abandoning his rights under the contract. Thereafter the plaintiff filed a criminal case against defendant 1 and Ram Sunder Kundu for cheating under Section 420, Penal Code. The accused, however, were acquitted on 16-11-1949.
It would appear, however, that a case under the House Rent Control Act for eviction of the plaintiff had commenced in October, 1949, as would appear from Ex. 4(a), the Judgment of the Commissioner delivered on 28-10-1951. In that proceeding the plaintiff filed a written statement on 23-12-1949. In that written statement the plaintiff clearly asserted that he was not in possession of the premises as a monthly tenant taut as an owner of it since the date of the execution of the sale-deed in his favour by its previous owner, namely, defendant 1.
It seems to me, therefore, that the plaintiff was asserting his right under the contract in December, 1949, when he filed his written statement in the proceedings under the House Rent Control Act. That those proceedings were strongly contested would appear from the fact that the proceedings went up even to the Commissioner of the Division, who gave his judgment on 28-10-1951. It. may well be that the plaintiff was waiting for these proceedings to end before filing a suit for specific performance. When, however, time was expiring and the proceedings were not yet coming to a final conclusion, he filed his suit on 8-3-1951.
In my judgment there is no clear proof that the plaintiff abandoned his rights under the contract. The circumstances, as far as they have been established, on the contrary, indicate that the plaintiff was assorting his rights under the contract throughout. In these circumstances it is impossible to hold that the plaintiff abandoned his rights under the contract.
13. The Subordinate Judge seemed to be of the opinion that although the suit had been filed within the period of limitation the plaintiff had made inordinate delay in bringing his suit for specific performance. It seems to me, however, that where there is a law of limitation within which a person can bring his suit for specific performance he is entitled to bring his suit at any time before the period of limitation has expired. Such delay as has taken place in the present case can be explained.
The plaintiff was prosecuting defendant 1 and Ram Sunder Kundu for cheating. He was also resisting eviction. It cannot be said, in my opinion, that the plaintiff just remained idle since 10-3-1948, until 8-3-1951, and thus by his conduct showed no desire to enforce his rights under the contract. Fry on Specific Performance, Edn. 6, in para 1100, has stated :
"The Court of Chancery was at one time inclined to neglect all consideration of time in the specific performance of contracts for sale, not only as an original ingredient in them, but as affecting them by way of laches. But it is now clearly established that the delay of either party in not performing its terms on his part, or in not prosecuting his right to the 'interference of the Court by the institution of an action, or, lastly, in not diligently prosecuting his action, when instituted, may constitute such laches as will disentitle him to the aid of the Court, and so amount, for the purpose of specific performance, to an abandonment on his part of the contract."
In paras 1107 and 1108 Fry points out that in many cases there has been a general dilatoriness in all the proceedings and therefore it was almost impossible to state briefly the actual amount of delay which has been considered to bar the plaintiff's right to relief. He then points out that some, notion of the present doctrine of the Court on the point would be gained from certain cases, to which he makes a reference in para 1108. In the case of -- 'Marquis of Hertford, v. Boore', (1801) 5 Ves Jun 719 (F), a delay of fourteen months was not considered a bar to the plaintiff's bill.
It was, however, pointed out by Mr. Mukherji for the appellant that the observations of Fry may be relevant where there is no period of limitation fixed by statute for filing a suit for specific performance. In this country where there is a period of limitation fixed by statute for bringing such an action it would not be proper to refuse to decree a suit for specific performance merely because the plaintiff instituted his suit just before the period of limitation expired.
It seems to me, however, unnecessary to deal with this aspect of the matter any further because, in my opinion, the circumstances clearly establish that the plaintiff was not altogether idle in asserting his rights under the contract between 10-3-1948, and 8-3-1951, when the present suit was filed. On the facts established in this case, therefore, neither the theory of abandonment nor the ground for late filing of the suit can be regarded as sufficient to deny the plaintiff his right to have the contract of sale between him and defendant 1 specifically performed.
14. Taking all the circumstances into consideration I am of the opinion that the plaintiff's suit for specific performance should have been decreed. I would accordingly allow the appeal with costs and set aside the decision of the Subordinate Judge and direct that defendants 1 to 4 do execute and register a sale-deed with respect to the properties in suit in favour of the plaintiff on his paying the sum of Rs. 17,449/- as the consideration money for the same. This figure has been arrived at after crediting the plaintiff with Rs. 550/- already paid towards the consideration money. If the defendants do not execute the sale-deed within one month from today the court will execute the sale-deed in favour of the plaintiff on his depositing in court the sum of Rs. 17,449/.- in favour of defendant 1.
15. In the case of -- 'Durga Prasad v. Deep Chand', AIR 1954 SC 75 (G) under the special circumstances appearing in that case it was ordered that the consideration money deposited in court could be withdrawn by the subsequent purchasers. The Supreme Court, however, clearly pointed out that the normal rule is to direct the withdrawal of the consideration money deposited in court by the vendor as there may be equities to be determined between him and the subsequent purchasers. No special circumstances appear in the present case for departing from the normal rule enunciated by the Supreme Court.
It may be noted that we delayed delivery of judgment in this case as the appellant had offered terms of compromise to defendants 2 to 4. As we have not been informed until now as to whether there has been a compromise between the appellant and defendants 2 to 4 we have no alternative but to deliver Judgment.
Jamuar, J.
16. I agree.