Decree--Preliminary decree--Decree passed in a suit for specific performance of contract of sale of immovable property calling upon the purchaser to deposit the balance of consideration within the time stipulated in decree with superadded condition that in the event of default, the suit would be dismissed is not a preliminary decree. Limitation Act (36 of 1963), Section 5--Condonation of delay--Amendment of decree--Decree in a suit for specific performance of contract for the sale of immovable property calling upon the purchaser to deposit balance of consideration within the time stipulated in decree--order extending time to deposit the balance of consideration would not result in amending the decree.
2. (a) In a suit for specific performance of contract for sale of immovable property 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. [849 B-C] (b) The question whether relief of specific performance of the, contract for the purchase of immovable 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
which the plaintiff desired to purchase. [849 D-H, 850 E-F] (d) The High Court was justified in refusing the decree for specific performance of the contract, on the ground 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.[850 F-G] (e) The contract was to be completed by April 1956. It was not completed till 1957, even though the defendant after satisfying the queries of the plaintiff fixed different dates on different occasions calling upon the plaintiff to complete the transaction. Thereafter the plaintiff filed a suit. The suit was decreed on 30th April 1962. The Plaintiff by that decree was called upon to deposit the balance of consideration within 30 days of the date of the decree. She did not deposit the amount by the stipulated date. She asked for extension of time. In fact, it prominently appeared that the plaintiff put off performing her part of the contract presumably because she had not the necessary wherewithals to take the conveyance when she could be obliged to pay the balance of consideration
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