Full Judgment Text
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PETITIONER:
SANDHYA RANI SARKAR
Vs.
RESPONDENT:
SUDHA RANI DEBI AND ORS.
DATE OF JUDGMENT14/02/1978
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
BEG, M. HAMEEDULLAH (CJ)
CITATION:
1978 AIR 537 1978 SCR (2) 839
1978 SCC (2) 116
ACT:
Constitution of India, 1950, Article 136--Interference by
Supreme Court, when condonation of delay was ordered by the
Court, exercising its discretionary powers and when
sufficient cause has been shown, propriety--Limitation Act
(36 of 1963), 1963, S. 5.
Civil Procedure Code, (Act 5 of 1908), Section
2(2)--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.
Specific Relief Act (47 of 1963), Section 16(b) and
(c)--Specific performance of contract--Decree for specific
performance refused.
HEADNOTE:
A contract for Sale of premises No. 88-A Rash Behari Avenue,
Calcutta was entered into between the appellant and deceased
Smt. Paribala Das on 8-2-1956 for a consideration of Rs.
46,000/-. The agreement for sale Ex.I, recites that Rs.
1001/- were paid as earnest money and subsequently the
defendant vendor received a further sum of Rs. 2000/- from
the plaintiff intending purchaser. Parties had agreed to
complete the transaction by the end of April ’56. The
appellant was put in actual possession of the 1st and 2nd
floors of the premises by the defendant vendor in her
anxiety to complete her part of the contract, but the
appellant was seeking time on some pretext or the other and
ultimately filed a suit for specific performance on 28th
January 1957, alleging non-performance by the vendor
defendant. The trial Court decreed the suit on 30th April,
1962, styling it as preliminary decree. The defendant
vendor was directed to execute and register the deed of sale
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in favour of the plaintiff on receipt of the amount stated
in the order within 30 days of date failing which the
plaintiff appellant was directed to file in Court, within 15
days after the expiry of 30 days, the draft of conveyance
with stamp therefor. The decree was drawn up on 15-5-1962.
The appellant did not comply with the terms of the decree
but sought some directions from the Court regarding the
excess land and a Commissioner was appointed on 14-5-1964.
On 26-8-65, the Court directed the plaintiff appellant to
deposit the amount in Court by 22-9-1965; but the appellant
filed a revision application before the High Court which was
dismissed on 8-1-1968. The High Court granted 3 weeks’ time
for depositing the amount and again further time till 8-2-
1968. The appellant deposited the money on 6-2-68 and
thereupon the vendor defendant No. 1 made an application on
25-3-1968 requesting the Court to draw the final decree so
as to enable her to prefer first appeal. ibis application
was rejected by the Court on 27th March 1968, and thereafter
she preferred First Appeal to the High Court on 11-4-1968
and filed an application for condonation of delay, if any,
on 8- 7 .
The High Court held that the appeal was barred by
limitation; but on the facts of the case condoned the delay
as sufficient cause having been shown, and examined the
appeal on merits and Allowed the appeal.
840
Dismissing the plaintiff’s appeal, by special leave, the
Court
HELD (1) ’(a) Discretion is conferred on the Court before
which an application for condonation of delay is made and if
the Court after keeping in view relevant principles
exercises its discretion granting relief unless it is shown
to be manifestly unjust or perverse the Supreme Court would
be loathe to interfere with it. [847 C-D]
(b) It is undoubtedly true that in dealing with the question
of condoning the delay under section 5, the party seeking
relief has to satisfy the Court that he had sufficient cause
for not preferring the appeal or making the application
within the prescribed time and this has always been
understood to mean that the explanation has to cover the
whole period of delay. However, it is not possible to lay
down precisely as to what facts or matters would constitute
"sufficient cause" under Section 5. But those words should
be liberally construed so as to advance substantial justice
when no negligence or any inaction or want of bona fides is
imputable to a party i.e. the delay in filing an appeal
should not have been for reasons which indicate the party’s
negligence in not taking necessary steps which he would have
or should have taken. What would be such necessary steps
;will again depend upon the circumstances of a particular
case. [847 A-C]
Sitaram Ramacharan v. M. N. Nagarashana, [1960] 1 SCR 875 @
889 =A.I.R. 1960 SC 260 @ pp. 265-66; State of West Bengal
v. Administrator, Howrah Municipality, [1972] 2 S.C.R. 874 =
A.I.R. 1972 S.C. 749, relied on.
(c) In the instant case, the High Court took into
consideration the fact that no affidavit in opposition to
the application for condoning delay was filed even though a
copy of the application was served on the respondent before
the High Court and accordingly it was concluded that
averments in the application remained unrebutted. The High
Court also took into consideration the relevant fact that
plaintiff sought extension of time to deposit balance of
consideration from time to time and this is important
because if the deposit was %not made the suit for specific
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performance of contract was liable to be dismissed as per
the decree of the trial court as well as the order of the
High Court in earlier revision application. The,-,High
Court recapitulated the events since the judgment of the
trial Court and concluded that it was satisfied that the
appellant before it had sufficient cause for not preferring
the appeal within the period as prescribed in law and
accordingly condoned the delay in preferring the appeal.
These are vital and relevant considerations, while
considering the prayer for condoning the delay in preferring
the appeal and thus no case has been made out for
interfering with the same. [847 E-G]
(d) To contend that assuming that there was delay on the
part of the plaintiff in performing her part of the contract
once she was put in possession of ’a substantial portion of
the property, which was intended to be purchased a decree
for specific performance should not be refused is not always
correct and again it depends on the facts of each case. [850
G-H]
Williams v. Greatrex. [1956] All. E.R. 705 quoted with
approval.
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. [850 A-B]
841
(c) In the instant case, by the terms of the contract the
vendor had to put the purchaser in possession of the
property when conveyance is executed and balance of
consideration is paid land 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 he 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 to at
all, till she parted with the full consideration and took
the conveyance. The stages within which the contract was to
be completed were actually demarcated, and set out in the
contract itself and by the land 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. The procrastination on the part of
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the plaintiff put the defendant in such a disadvantageous
position that she was forced to sell the adjacent property
to raise enough money to pay off the dues in respect of the
property 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 and having
obtained possession hung on to it without meeting her
obligation. If in this background the High Court interfered
within the decree of the trial Court, there was ’nothing
objectionable in it. [853 C-G]
Jitendra Nath Roy v. Smt. Maheshwari Bose, A.I.R. 1965 Cal.
45, Bank of India Ltd. v. Jamsetji A. H. Chinoy and Anr., 77
IA, 76 discussed.
3. To assert that the decree made in a suit for specific
performance of contract for sale of immovable property
calling upon the purchasers 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. [841 E-G]
JUDGMENT:
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.
842
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
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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
843
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
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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 first contention raised on behalf of the appellant is
that the appeal before the High Court preferred by the
respondent vendor was barred by limitation and the vendor-
had failed to make out any cause much less a sufficient
cause, preventing her from preferring the appeal in time and
the High Court was in error in exercising the _ discretion
condoning the delay and admitting the appeal to file. On
behalf of the vendor respondent it was submitted that the
appeal before the High Court was in time and at any rate the
discretion exercised by the High Court could not be styled
as perverse or unreasonable and this Court should not
interfere with the same. Simultaneously, it was submitted
that the material on record would unquestionably establish
that the appellant before the High Court was prevented by a
sufficient cause from preferring the appeal in time.
Some relevant and material dates may now be noticed.
Agreement of ’sale, Ext. I on which suit was founded was
executed on 8th February 1956. Suit for specific
performance of this agreement was instituted on 28th January
1957. It was decreed on 30th April 1962. The decree was
drawn up on 25th May 1962, the first appeal was preferred on
11th April 1968. An application under s. 5 of the
Limitation Act supported by an affidavit was presented on
8th August 1972. There are certain events that occurred
after the decree was drawn up on 25th May 1962 and before
11th April 1968 when appeal was preferred by the vendor of
which brief note would be necessary. The material portion
of the decree has been set out in extenso above and at first
glance it would appear that the purchaser had to pay the I
amount therein mentioned to the vendor within 30 days from
the date of the decree and the vendor had to execute the
deed of conveyance failing which the amount was to be
deposited in the Court within 15 days from the expiry of the
first mentioned 30 days and submit the draft of conveyance
to the Court for getting it executed and registered through
the Court. The decree further directed that if the
purchaser failed to deposit the amount within the stipulated
time the suit would stand dismissed. The vendor interpreted
the decree to be a preliminary decree, and awaited the
purchaser to perform her part of the decree by depositing
the amount in the Court. The purchaser failed to deposit
the amount within the
844
stipulated time but on 14th June 1962 she sought some
directions from the Court for making the deposit. There was
some dispute between the parties about the extra land which
was to be sold and its price. An order was made by the
trial Court on 14th May 1964 directing the plaintiff
purchaser to take steps for appointment of a Commissioner to
determine the area of extra land and the price to be paid
for such land and she was required to take steps by 22nd May
1965. A further direction was given on 26th August 1965
directing the plaintiff to deposit Rs. 42999 plus Rs. 500 by
22nd September 1965 pursuant to the maps and report
submitted by the Commissioner. Plaintiff purchaser
preferred Civil Revision Application No. 3195 of 1965
challenging the report of the Commissioner and the direction
of the Court. The Civil Revision Application was dismissed
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by the High Court on 8th January 1968 and the High Court
simultaneously extended the time for depositing the balance
of consideration by three weeks from the date of the order
making it conditional that in the event of default the suit
would stand dismissed. This order was modified by the High
Court on 2nd February 1968 extending the time to make the
deposit till 8th February 1968 retaining the original
condition. The purchaser deposited the balance of
consideration on 6th February 1968 whereupon the vendor
defendant No. 1 made an application on 25th March 1968
requesting the Court to draw the final decree so as to
enable her to prefer first appeal. This application was
rejected by the Court on 27th March 1968 and thereafter the
appeal was preferred to the High Court on 11th April 1968.
As stated earlier, an application requesting the Court to
condone the delay in preferring the appeal was filed on 8th
August 1972.
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.
845
decision would not assist the respondent and in fact the
High Court treated that fact as sufficient for extension of
time under s. 5. The decision in Jagat Dhish Bhargava v.
Jawarhar Lal Bhargava and others ( 1 ) proceeds on the basis
that litigant deserves- to be protected against the default
committed or negligence shown by the Court or its officers
in the discharge of their duties. In that case litigant had
applied for certified copy of the decree ’soon after
judgment I was pronounced but as the certified copy was not
given, appeal was filed without producing certified copy of
the decree and it was contended that under the relevant
rules appeal was not competent. Such is not the case.
Present respondent, if she wanted to question the decree
directing her to execute conveyance, ought to have preferred
appeal against the decree dated 30th April 1962. That has
not been done and obviously the appeal preferred on 11th
April 1968 was barred by limitation.
The High Court rightly held that the appeal was barred by
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limitation, and then proceeded to examine the submission of
the appellant before it that the appellant was prevented by
a sufficient cause from preferring the appeal in time and
the delay should be condoned. The High Court having
examined all the relevant materials placed before it, has
exercised its discretion in favour of the appellant by
condoning the delay and admitting the appeal to file. In
the facts and circumstances of this case, could it be said
that the High Court committed an error in exercising its
discretion in favour of the appellant before it ?
At the outset it was urged that the cause shown by the
respondent which prevented her from preferring the appeal in
time is not the one accepted by the High Court, but the High
Court has made out entirely a different ground not pleaded
for condoning delay.. We have gone through the application
filed by the appellant before the High Court praying for
condoning delay. It was asserted that the appeal, is within
time and alternatively it was prayed that delay, if any, be
condoned. The High Court examined both limbs of the
contention. We see no contradiction in what is stated in
the application and what the High Court found as a fact.
The contention is that decree was a preliminary decree and
on deposit it became a final decree. Alternatively it was
contended that various events that occurred since the decree
did create an impression in the mind of the vendor appellant
that till the balance of purchase price was deposited the
right to file an appeal did not arise and that a final
decree would be made. That was pleaded and that has been
accepted. Therefore, there is no merit in this contention.
Very serious exception is taken to one observation of the
High Court that an application for condoning the delay was
submitted simultaneously with filing the appeal though in
fact it was done nearly four years after filing of the
appeal, and that the office of the High Court was misled by
certain averments made in the Memo of Appeal which the
Registry prima facie accepted and numbered the appeal
without insisting upon an application for condonation of
delay or bringing that fact to the notice of the Court on
whose cause list the appeal was listed for admission. Now,
it is undoubtedly true that the application
(1) A.I.R. 1961 S.C. 832.
846
for condoning the delay was made on 8th August 1972 and
there is some factual error in-stating in the judgment that
the application was simultaneously filed with the appeal.
But this aspect is not very material as the delay had to be
explained till the date of filing of the appeal and not at
any rate after filing of the appeal or till the application
for condoning the delay was made. It is true that in the
Memo of Appeal it has been stated that the appeal is
directed against the judgment and decree dated 30th April
1962 as amended and/or modified by orders dated 8th January
1968 and 2nd February 1968. The averments are factually
correct and, therefore, it could not be said that they were
made with a view to misleading the Registry of the High
Court. By the decree dated 30th April 1962 purchaser was
directed to deposit the balance of consideration within the
stipulated time and at the request of the purchaser the time
was first extended by the trial Court and then by the High
Court in Civil Revision Application No. 3195 of 1965 on two
different occasions, viz.on 8th January 1968 and 2nd
February 1968. Therefore, no exception can be taken to those
avertments which are factually correct though the appeal
would lie obviously against the decree dated 30th April
1962. It, however, appears that as the appeal was numbered
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and was even admitted, though the application for condoning
delay was not made till the appeal was placed on the cause
list and was actually taken up for hearing when an objection
was raised that the appeal was barred by limitation. It is
obviously at that stage that the application for condoning
delay was made.
The appellant before the High Court did honestly believe
that the decree was a preliminary decree and only after the
deposit as directed therein was made by the plaintiff
purchaser that a final decree would be made. The learned
trial judge has also styled it as a preliminary decree.
Subsequent steps which have been listed in detail above
clearly show that the plaintiff purchaser did not deposit
the amount and in fact got a Commissioner appointed for
determining the area of excess land and when the report of
the Commissioner was accepted by the trial Court, that
decision was questioned by the plaintiff in Civil Revision
No. 3195/65. If since the decree the plaintiff sought
extension of time for depositing the amount which was the
obligation imposed by the decree the performance of which
will make the decree executable against judgment-debtor, the
judgment-debtor may honestly, though erroneously, believe
that there was no decree against which she could appeal
unless the deposit was made. The decree also provided that
failure to deposit would entail dismissal of the suit. The
defendant may honestly believe that if the consideration is
not deposited the suit would stand dismissed and it would
not be necessary to prefer an appeal at all. Such a
contention may not stand the scrutiny of a law Court but the
question to which we must address ourselves is whether the
defendant vendor on account of this peculiar situation could
be said to be prevented by a sufficient cause from
preferring an appeal in time ? Soon after the deposit was
made she first requested the Court to draw up a final decree
which request was turned down and she immediately preferred
the appeal. These are relevant considerations while examin-
ing a request for condoning the delay in preferring an
appeal and on
847
these relevant considerations if the High Court is satisfied
simultaneously keeping in view the conduct of the, Plaintiff
since the date of the decree a case for condoning the delay
is made out, and no exception can be taken to it. It is
undoubtedly true that in dealing with the question of
condoning the delay under s. 5 of the Limitation Act the
party seeking relief has to satisfy the Court that he had
sufficient cause for not preferring the appeal or making the
application within the, prescribed time and this has always
been understood to mean that the explanation has to cover
the whole period of delay, vide Sitaram Rancharan etc. v. M.
N. Nagarshana & Others(1). However, it is not possible to
lay down precisely as to what facts or matters would
constitute ’sufficient cause’ under s. 5 of the Limitation
Act. But those words should be liberally construed so as to
advance substantial, justice when no negligence or any
inaction or want of bona fides is imputable to a party,
i.e., the delay in filing an appeal should not have been
for. reasons which indicate the party’s negligence in not
taking necessary steps which he would have or should have
taken. What would be such necessary steps will again depend
upon. the circumstances of a particular case (vide State of
West Bengal v. Administrator, Howrah Municipality and
others(2). Discretion is conferred on the Court before
which an application for condoning delay is made and if the
Court after keeping in view relevant principles exercises
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its discretion granting relief unless it is shown to be
manifestly unjust or perverse, this Court would be loathe,
to interfere with it.
The High Court took into consideration the fact that no
affidavit in opposition to the application for condoning
delay was filed even thorough copy of the application was
served on the present appellant who was respondent before
the High Court and accordingly it was concluded that
averments in the application remained unrebutted. The High
Court also took into consideration the relevant fact that
plaintiff sought extension of time to deposit balance of
consideration from. time to time and this is important
because if the deposit was not made the suit was likely to
be dismissed as per the decree of the trial Court as well as
the order of the High Court in Civil Revision Application
No. 3195 of 1965. The High Court recapitulated the events
since the judgment of the trial Court and concluded that it
was satisfied that the appellant before it had sufficient
cause for not preferring the- appeal within the period as
prescribed in law and accordingly condoned the delay in
preferring the appeal. In our opinion these are vital and
relevant considerations was considering the prayer for
condoning the delay in preferring the appeal and no case is
made out for interfering with the same.
And now to the merits of the contentions raised in the
appeal. Plaintiff’s suit for specific performance had been
decreed by the trial Court and on appeal by the vendor
defendant, the suit has been dismissed. Plaintiff is here
before us praying for a decree for specific
(1) [1970] 1 S.C.R. 875 at 889.
848
performance of the contract. Let it be recalled that the
contract of which plaintiff seeks performance is dated 8th
February 1956 and the parties had agreed to complete the
transaction by the end of April 1956. The contract provided
that within a week from the date of the agreement the,
vendor shall give to the purchaser for proper inspection all
original documents of title and other papers connected
therewith and necessary information and the purchaser shall
within a period of 3 one and half months from such
inspection of the documents and other papers and receipt of
other particulars and information complete her searches in
respect of the property and the vendor’s title being proved
good and marketable So the satisfaction of the purchaser the
deed of conveyance will be executed and registered within
fifteen days thereof in favour of the purchaser or her
nominee or nominees at the cost of the purchaser or such
nominee or nominees. The vendor also, agreed and undertook
to deliver to the purchaser vacant and peaceful possession
of the property to be sold with the execution of the deed of
conveyance. Keeping in view these important terms, Mr.
Purshottam Chatterjee contended that the High Court was in
error in holding that the vendor complied with all the
requests of the purchaser and it was submitted that the
vendor had committed a default in complying with the
requests. It was submitted that the plaintiff purchaser
wanted to inspect title deeds as evidenced by Ext. 2 dated
17th February 1956 to which a reply was sent on behalf of
the defendant vendor that these documents were filed in
title suit No. 10 of 1956 and were lying in the Third Court
of the Sub-Judge at Alipore and that it was as late as 9th
August 1956 that the defendant vendor asked the purchaser to
inspect the documents in the Court and also failed- either
to produce the original documents or certified copies as
undertaken in the contract for sale of property. It was,
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therefore, contended that the vendor committed a breach of
the terms of the agreement when she failed to produce the
title deeds for inspection of the purchaser within the
prescribed time schedule. It appears that the contention in
the form it was canvassed before us was not raised before
the High Court. Nor does it appear to have been contended
before the trial Court. However, it must be stated that in
a slightly different form this contention was pressed before
the trial Court in support of the submission that the
plaintiff was entitled as per terms of the contract to one
foot of land to the north of the property to be purchased
and the trial Court which bad in fact decreed the
plaintiff’s suit, had on this point held against the
plaintiff. Mr. Mukherjee for the respondent submitted that
title was approved by the plaintiff by 30th April 1956 and
then she was put in possession of a substantial portion of
the premises. At any rate, during the extended period the
title of the vendor was accepted by the plaintiff and the
draft of conveyance deed prepared by her attorney was
accepted by the vendor and yet the plaintiff failed to take
conveyance by the date next fixed for the same and--raised
an untenable controversy about 1 foot of land to the north
of the property to be sold to her. Therefore, even if
vendor failed to submit title deeds in time it loses all
significance. Save this, the finding of the High Court that
the defendant had complied with all the requests made by the
plaintiff to complete the transaction in time could not be
assailed.
849
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
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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.
Mr. Chatterjee contended that delay on the part of the
plaintiff would not disentitle her to a decree for specific
performance unless it can be shown that time was of the
essence of the contract or was made essence of the contract
or delay on the part of the plaintiff amounted to
abandonment of the contract. Our attention was drawn to
Article 466, Halsbury’s Laws of England, III Edition, Vol.
36, p. 322 where it is observed that delay by a plaintiff in
performing his part of the contract is a bar to his
enforcing specific performance, pro-
850
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-
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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.
Mr. Chatterjee, however, contended that assuming there was
delay on the part of the plaintiff in performing her part of
the contract, once she was put in possession of a
substantial portion of the property which was intended to be
purchased, a decree for specific performance could not be
refused. In this connection be invited our attention to
para 474, Halsbury’s Laws of England, III Edition, Vol. 36,
p. 325, where it is observed that delay does not, however,
bar a claim to specific performance if the plaintiff has
been in substantial possession of the benefits
851
under the contract and is merely claiming completion of the
legal estate. Reference was also made to Williams v.
Greatrex.(1) In that case the delay was of 10 years before
entire period of 10 years neither side gave notice requiring
bringing an action for specific performance. During the the
other to complete the transaction. In this background the
fact that the intending purchaser was put in possession of
the plots acquired considerable importance and after
considering the question of laches, a decree for specific
performance was granted. But the conclusion was reached on
the facts of that case. In the case before us the defendant
had on as many as three different occasions invited the
plaintiff to complete the transaction. By Ext. 2H, 17th
July 1956 was fixed as the date for execution and
registration and by Ext. 2J dated 9th August 1956, 12th
August 1956 was fixed as the date for execution and
registration of the conveyance. Again by letter dated 27th
August 1956, Ext. 2P, the plaintiff was informed that if the
transaction was not completed within a week from 26th August
1956, the defendant would treat the agreement of sale as
cancelled, forfeit the earnest money and claim damages for
wrongful use and occupation of the premises. In this
background it is not possible to accept the submission that
even if the plaintiff was guilty of delay in performing her
part of the contract, in view of the fact that she is in
possession of a substantial portion of the property which is
the subject-matter of this appeal, the delay should be
overlooked and a decree for specific performance should be
granted.
The correspondence that passed between the parties
prominently brought out three points of dispute between the
parties. The plaintiff claimed sale of one foot of land to
the north of the property involved in dispute. Reliance was
placed in support of the submission on the map annexed to
the agreement. The map prepared by the Commissioner was
also referred to. It is not necessary to examine evidence
on this point because both the trial Court which decreed the
plaintiff’s suit and the High Court which held against the
plaintiff have recorded a concurrent finding that the
plaintiff was not entitled as part of the agreement to
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purchase one foot of land to the north of the property. In
fact, it has been held that this claim was purposely
invented by the plaintiff fully knowing that to the north of
the premises 88A, Rash Behari Avenue there was no land
appurtenant to the said premises. Even if both the maps are
compared it is not possible to come to the ,conclusion that
there was any such land which was included in the agreement
of sale. If there was no such land which could be sold to
the plaintiff and yet if the plaintiff persisted in making
this demand, the High Court and the trial Court were both
amply justified in coming to the conclusion that this claim
was invented with a view to putting off the date for
performing her part of the contract. But in this connection
Mr. Chatterjee contended that the plaintiff purchaser wanted
demarcation of boundary as per Ext. 2E and instead of
agreeing to make arrangement for demarcation. the defendant
contended that, demarcation was aready effected. By letter
Ext. 2K, the plaintiff denied any such demarcation. It was
also urged that there is no document on record which would
show that any joint demarcation of
(1) [1956] All E. R. 705.
852
the boundary was undertaken and demarcation was made. In
this connection, the letter Ext. 2P on behalf of the
defendant clearly shows that demarcation of the boundary was
already done. The dispute about demarcation has hardly any
relevance. In fact, the dispute is raised by the plaintiff
when she claims one foot of land to the north of property.
Even if one relies upon the map annexed to the agreement,
the claim is not substantiated. Both the trial court and
the High Court have concurrently found that no such land was
agreed to be sold. If the plaintiff still persists in
making such a demand she is asking the defendant to perform
an agreement which was not entered into between the parties.
However, this matter can be looked at from a slightly
different angle also in that when the Commissioner prepared
the map the plaintiff questioned it in the High Court and
the High Court accepted the Commissioners map showing which
was the property to be sold by the defendant to the
plaintiff and this map did not contain one foot of land to
the north of the property. The contention about one foot of
land to the north was already negatived and could not be
reagitated before the High Court. Even apart from this
technical aspect substantially on evidence also the,
plaintiff fails on this point. Yet she delayed performing
her part by insisting upon buying one foot of land.
Another dispute between the parties was with regard to the
claim of Rs. 2,000/- which the plaintiff appears to have
paid to the tenant to get him vacate a portion of the
premises so that she could take over possession. Both the
trial court and the High Court have rejected this claim
observing that if the plaintiff voluntarily paid something
for her own benefit she could not claim the same from the
defendant. There is nothing to show that this amount was
paid by the plaintiff on behalf of the defendant or with the
consent or concurrence of the defendant. The plaintiff,
till 1968 when she deposited the balance of consideration in
the Court, was not entitled to be put in actual possession
and yet if she was put in possession of a substantial
portion of the premises and she for her own benefit paid
something to the tenant in a portion of the premises to
vacate the same so that she can enjoy it, it was a voluntary
payment made by her for her own benefit and not for the
benefit of the vendor. That amount was used by her for her
own benefit and could not be recovered from the defendant.
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On the contrary, this claim would show that the plaintiff
was putting hurdles in the way of performing the contract.
Mr. Chatterjee argued that the High Court clearly committed
an error in law in holding that the plaintiff had no
wherewithal to pay the balance of consideration and it was
further argued that the High Court took into consideration
extraneous circumstances such as the insolvency of the
husband of the plaintiff to come to the conclusion that the
plaintiff had not necessary wherewithal with her to pay the
balance of consideration. In this connection the plaintiffs
case is that the amount of Rs. 2,000/- paid as earnest money
was advanced by her husband and she was to procure the
balance of consideration by selling her ornaments which she
had with her. The plaintiff has not stepped into the
witness box. There is no material to show that she bad
enough ornaments which would have fetched nearly Rs.
45,000/-.
853
But reliance was placed on the pass books of the plaintiff’s
husband. The pass books show an overdraft account in the
name of the husband of the plaintiff. Assuming that the
entries in the pass book show that the husband of the
plaintiff could have procured the amount, the plaintiff’s
case is that she was to sell the ornaments to procure the
balance of consideration. If that was the case, she wanted
to make out, it was incumbent upon her to step into the
witness box. Now, as against this, there are some telltale
facts on record which permit an irresistible inference that
the plaintiff did not have necessary wherewithal to pay the
balance of consideration and therefore, she put forth one or
the other excuse to avoid the performance, of her part of
the contract. Two such pretexts can be readily pointed out,
one when she insisted for the, sale of one foot of land to
the north of the property which claim was thoroughly unjust
and improper, and second, the demand of- Rs, 2,000/- spent
by her in making the tenant vacate a portion of the
premises. 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 plaintiff filled a
suit. The suit was decreed on 30th April 1962. We have
already at another place referred to this decree. to point
out that the plaintiff by that decree was called upon to
deposit the balance of consideration within 30 days of the
date of the decree. This would mean that she had to deposit
the balance of consideration by the end of May 1962. She
did not deposit the amount by the stipulated date.. She
asked for extension of time. Thereafter she moved an
application for ascertaining the area of excess land which
was being sold to her. Under this pretext she did not
deposit the balance of consideration. Thereafter when the
Commissioner prepared the map and the Court fixed another
date to deposit the amount, she questioned the order of the.
Court in the High Court and after the High Court dismissed
her revision application and called upon her to deposit the
balance of consideration she again sought extension and
ultimately deposited the amount on 6th February 1968. This
would show that at the material point of time she did not
have the necessary wherewithal to pay the balance of
consideration and to take the conveyance and this would
provide tell-tale evidence to explain her conduct in putting
forth one or the other impediment in the path of performance
of the contract. If in the background of this evidence the
High Court reached the conclusion that she did not have the
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necessary wherewithal with her to pay the balance of
consideration and take the deed of conveyance, one cannot
take any exception to it. But in this connection Mr.
Chatterjee contended that the plaintiff seeking specific
performance of the contract is. not required to show that
she has at all material time necessary cash with her to per-
form her part of the contract. It is enough if the-
plaintiff can show that she was in a position to raise the
money required at or about the time when the contract was to
be; performed and she discharges the obligation of proving
readiness and willingness so far as the financial aspect is
concerned. Reliance was placed on Jitendra Nath Roy v. Smt.
Maheswari Bose(1). Undoubtedly, the question would be,
(1) A.I.R. 1965 Calcutta 45.
854
while examining the readiness and willingness of the
plaintiff to perform her part of the contract to find out
whether she would be in a position to take the conveyance by
paying the balance of consideration and that the enquiry may
well be, made whether she would be in a position to raise-
the money. Reference was also made to Bank of India Ltd. v.
Jamsetji A. H. Chinoy and Another(1), where it was held that
the plaintiff seeking to prove that he was ready.and willing
to fulfil his financial obligations has not necessarily to
produce the money or to vouch a concluded scheme for
financing the transaction. After the High Court dismissed
her revision application and fixed the date 8th January 1968
for depositing the amount, she had no further contention to
put forth and she should have deposited the amount yet she
sought extension of time. And along with this, one must
keep in view her contention that she had to sell her
ornaments to raise the amount for which she did not step
into the witness.box to prove her contention. In this
background it does appear that the plaintiff had not the.
necessary wherewithal to perform her part of the contract.
It was next contended that the relief for specific
performance being discretionary and the trial Court having
exercised its discretion one way in favour of the plaintiff,
the High Court should not have interfered with the same. It
may be recalled that on major points of dispute between the
parties the trial Court and the High Court recorded
concurrent findings to wit the claim of the plaintiff for
sale of one foot of land to north of property and the demand
of Rs. 2,000/- spent by the plaintiff for removing the
tenant. The third dispute was about removal of fixtures
from the northern wall by the defendant. The trial court
held that the defendant committed default in removing the
fixtures. Our attention was drawn to the relevant
correspondence on the subject. It was urged that the
defendant was required to remove the fixtures on the
northern wan. On this point the trial court held that the
defendant committed default in removing the fixtures. In
fact, the correspondence would show, that the fixtures could
be. removed in a short time and the defendant was always
willing to remove the fixture. But the trial court held
that the defendant committed a default in this behalf and
recorded a finding that as both the plaintiff and the
defendant committed default law must take its own course,
viz., the plaintiff should get a decree for specific
performance of that contract. The High Court examined this
contention meticulously. ,So have we done here. In fact, it
prominently appears that the plaintiff put off performing
her part of the contract presumably because she had not the
necessary wherewithal to take the conveyance when she would
be obliged to pay the balance of consideration and having
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obtained possession struck on to it without meeting her
obligation. If in this background the High Court interfered
with the decree of the trial court, we see nothing
objectionable in it. The decree for specific performance in
this case has been rightly refused and this appeal is liable
to be dismissed.
(1) 77 I.A. 76.
855
Al one stage Mr. Chatterjee wanted us to work out the
equities of ’the situation but as, we are of the opinion
that the plaintiff is not entitled to a decree for specific
performance of the contract, we need not examine the same.
Accordingly, this appeal fails and is dismissed with costs.
S.R. Appeal dismissed.
856