CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1389 of 1976.
Appeal by Special Leave from the Judgment and Order dated 6- 6-74 of the Calcutta High Court in Appeal from Original Decree No. 1056 of 1968.
Purushottam Chatterjee and Rathin Das, for the Appellant. D. M. Mukherjee and N. R. Chowdhury, for the Respondents. The Judgment of the Court was delivered by DESAI J.-This appeal by special leave by the original plaintiff questions the correctness of the decree dismissing her suit for specific performance of contract for 'sale of premises No. 88-A, Rash Behari Avenue, Calcutta, entered into between her and deceased Smt. Paribala Das on 8th February 1956 for a consideration of Rs. 46,000/-. The agreement of sale, Ext. 1, recites that Rs. 1001/- were paid as earnest money and subsequently the defendant vendor received a further sum of Rs. 2,000/- from the plaintiff intending purchaser. Various terms of agreement would be referred to in the course of this judgment. The plaintiff filed the suit for a decree for 'specific performance of the contract alleging that even though she 'is ready and willing to perform her part of the contract the defendant No. 1 has not completed the transaction and, therefore, a decree for specific performance should be made in favour of the plaintiff. In this suit she impleaded vendor defendant No. I and her son Hrishikesh Das as defendant No. 2. The suit was resisted by the defendants, inter alia, contending that the plaintiff was not ready and willing to perform her part of the contract more particularly saying that the vendor was in urgent need of money to pay off the mortgage debt and, therefore, she had entered into contract for sale of property and that time was of the essence of the contract and yet the plaintiff under one or the other false pretext put off performing her part of the contract so that the vendor was compelled to sell another valuable property bearing No. 86-A, Rash Behari Avenue, Calcutta. The trial Court after an elaborate examination of the evidence decreed the suit on 30th April 1962 directing "defendant No. 1 to execute and register a deed of sale in favour of the plaintiff in respect of the premises No. 88A, Rash Behari Avenue, Calcutta, on receipt of the balance of consideration of Rs. 42,999 and a further sum of Rs. 500 if there be an excess land of 1 cottah 88 sq. ft. beyond 2 cottahs 2 chittaks 38 sq. feet or any money proportionate to the extent of the excess land, amicably within 30 days, of date, failing which the plaintiff do deposit in Court the consideration thus due, together with the cost of execution and registration and the draft of the conveyance with stamp for the conveyance within 15 days of the expiry of that 30 days for having the conveyance executed and registered through Court. In case of default on the part of the plaintiff in complying with the above order the suit shall stand dismissed with costs and that the sum of Rs. . . . . be paid by the .... to the .... on account of the costs of this suit, with interest thereon at the rate of...... per cent per annum from this date to date of realisation". The decree in terms of the operative portion hereinabove mentioned was drawn up on 16th May 1962. Since the date of the decree certain events occurred which would be noticed while examining the first contention on behalf of the appellant herein. Suffice it to say that the vendor preferred first appeal to the High Court of Calcutta on 11th April 1968. When the appeal appeared on the cause list and was taken up for hearing, an application under s. 5 of the Limitation Act supported by an affidavit was filed on 8th August 1972 requesting the Court that in case the appeal is found to be barred by limitation the appellant before the High Court was prevented by a sufficient cause from preferring the appeal in time and, therefore, the delay should be condoned. The, application for condonation of delay and the appeal were heard together and the High Court while holding that the appeal was barred by limitation, was further of the opinion that the vendor appellant before it was prevented by a sufficient cause from preferring the appeal in time, and accordingly condoned the delay. On merits, the High Court held that the vendor was always ready and willing to perform her part of the contract but the plaintiff purchaser under one pretext or the other deferred performing her part of the contract beyond reasonable time and was, therefore, not entitled to a decree for specific performance. Accordingly, the High Court allowed the appeal and dismissed the plaintiff purchaser's suit. Hence this appeal by the plaintiff purchaser.
The appeal against the decree dated 30th April 1962 preferred on 11th April 1968 was obviously barred by limitation. To assert that the decree made in a suit for specific performance of contract for sale of immovable property calling upon the purchaser to deposit the balance of consideration within the time stipulated in the decree with super added condition that in the event of default the suit would stand dismissed, is a preliminary decree, is to ignore. the relevant provisions of the Code of Civil Procedure which require in certain types of suits to pass preliminary decree. Such a suit when contested, each party would be accusing the opposite party of committing breach of contract. The right to ask for specific performance of contract would be adjudicated upon and in fact in this case it was adjudicated upon. The trial court did call upon the defendant to execute the conveyance on receipt of consideration. Such a decree could never be said to be preliminary decree. If defendant vendor was contesting the right of the plaintiff to ask for 'specific performance and that was concluded adverse to her and if the vendor wanted to challenge the finding, it was incumbent upon her to prefer an appeal within the prescribed period of limitation. Similarly, it is also not possible to entertain the contention that the orders extending the time to deposit the balance of consideration would result in amending the decree and as the appeal is preferred after such last amendment the appeal would be in time. Reliance was placed on Sm. Soudamini Das v. Nabatak Mia Bhuiya and others,(1) but that (1) A.I.R. 1931 Calcutta 578.
The High Court reversed the decree of the trial. Court holding that the plaintiff purchaser had under one pretext or other put off the taking of the deed of conveyance and delayed performing her part of the contract. The correctness of this finding was seriously assailed on behalf of the appellant. It was urged that the High Court itself has found in this case that time was not, the essence of the contract nor was it made essence of the contract because the date for performance was extended on number of occasions. It was urged that this discloses a self-contradictory approach on the part of the. High Court when on the one hand it holds that time was neither the essence of the contract nor was it made essence of the contract but on the other refuses decree for specific performance on the only ground that the plaintiff delayed performing her part of the contract. It is undoubtedly true that the High Court has recorded a finding (p. 32) that time was not the essence of the contract nor was it made essence of the contract by a specific notice, but it is equally true that the plaintiff seeks relief for specific performance of contract and it is incumbent upon the plaintiff to affirmatively establish that all throughout he or she, as the case may be, was willing to perform his or her part of the contract, and that the failure on the part of the plaintiff to perform the contract or willingness to perform her part of the contract may in an appropriate case disentitle her to relief, one such situation being where there is inordinate delay on the part of the plaintiff to, perform his or her-part of the contract and that is how the High Court has approached the matter in this case. One, aspect of the case which deserves notice is that by the terms of the contract the vendor had to put the purchase in possession of the property when conveyance is executed and balance of consideration is paid and, that was to be done by the end of April 1956. Even though the plaintiff purchaser had failed to perform any portion of her part of the contract by the end of April 1956, the vendor put the plaintiff in actual possession of the first and second floors of the premises to be sold on 28th April 1956 and the plaintiff is in possession of the same till today that is after a lapse of more than 20 years. On the other hand, she deposited after struggle and procrastination the balance of consideration on 6th February 1968 that is nearly 12 years after the date of agreement. The plaintiff thus enjoyed actual possession of the property from April 1956 to February 1968 when she parted with consideration without paying a farthing for the use and occupation of the premises which, on a reasonable construction of the contract, she was not entitled at all, till she parted with the full consi- deration and took the conveyance. This has undoubtedly weighed with the High Court in coming to the conclusion that the plaintiff is disentitled to a relief of specific performance of contract.
vided that (1) time was in equity originally of the essence of the contract; or (2) was made so by subsequent notice; or (3) the delay has been so great as to be evidence of an abandonment of the contract. It was then said that in view of the finding of the High Court that time was not of the essence of the contract or was not so made, the decree could not be refused on the ground of delay. The question whether relief of specific performance of the contract for the purchase of immoveable property should be granted or not always depends on the facts and circumstances of each case and the Court would not grant such a relief if it gives the plaintiff an unfair advantage over the, defendant. A few relevant facts of the case would unmistakably show that if a decree for specific performance in this case is granted it would give the plaintiff an unfair advantage over the defendant. The defendant was obliged to sell the property because it was mortgaged with Hindustan Co-operative 'Insurance Society Ltd., and the mortgagee Company had filed Title Suit No. 10/656 for realisation of mortgage dues. The vendor then had thus a compelling necessity to sell the, property to save the property from being sold at a Court auction. It is in this background that we have to appreciate the conduct of the plaintiff. The stages within which the contract was to be completed were clearly demarcated and set out in the contract itself and by the end of April 1956 the transaction was to be completed. In her anxiety to see that the transaction was completed the defendant vendor put the plaintiff in possession of a substantial portion of the property even when the plaintiff had not paid a major part of the consideration. This would clearly evidence the anxiety of the defendant to successfully complete the contract within the stipulated time. To repel this submission on the flimsy ground that mortgage was not referred to in the contract for sale is to ignore the letter on behalf of the defendant dated 25th February 1956 in which it is specifically stated that the title deeds of the property in question were lying in the court of Sub-Judge at Alipore in which Hindustan Co- operative Insurance Society Ltd., had filed a suit for realisation of mortgage dues. And the procrastination on the part of the plaintiff put the defendant then in such a disadvantageous position that she was forced to sell the adjacent property 86A, Rash Behari Avenue to Hindu Maha Sabha to raise enough money to pay off the dues in respect of the property which the plaintiff desired to purchase. If in this background the High Court took into consideration the fact that while the defendant did everything within her power to meet the requests made by the plaintiff, the latter avoided performing her part of the contract under one or the other pretext and, therefore, is disentitled to a decree for specific performance, no serious exception can be taken to this finding.