Ashutosh Das and ors. Vs. Smt. Dhirarani Nandan and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/862264
SubjectProperty;Contract
CourtKolkata High Court
Decided OnJan-29-2002
Case NumberF.A. No. 12 of 1999
JudgeAjoy Nath Ray and ;Samarendra Nath Bhattacharjee, JJ.
Reported in(2002)1CALLT582(HC),2002(1)CHN566
ActsSpecific Relief Act, 1963 - Sections 12 and 16
AppellantAshutosh Das and ors.
RespondentSmt. Dhirarani Nandan and ors.
Appellant AdvocateDudhis Dasgupta, ;Amitava Ghosh and ;Tpas Dey, Advs.
Respondent AdvocateA.K. Ghosal, ;Chandramala Mukherjee, ;Jiban Ratan Chatterjee, ;Jyotirmoy Bhattacherjee, ;H.P. Kar, ;Ratna Ghosh, ;Chandra Sekhar Das and ;Ashit Kumar Bhattacharya, Advs.
DispositionAppeal dismissed
Excerpt:
- a.n. ray, j.1. this is an appeal by the plaintiffs from a judgment and decree of the lower court whereby their suit for specific performance was dismissed. the agreement was entered into by and between the plaintiffs and the first three defendants, being mother and two daughters. it appears that the common agent of both sides was one sushil kumar dutta, husband of mira, one of the daughters. since the filing of the appeal the mother tara sundari has expired. the agreement was oral, and was entered into in may 1977. for rendering his services the son-in-law, sushil kumar dutta was himself to get from the purchasers a sum of rs. 10,000/- but the consideration for purchase of the land was rs. 70,000/-. at the time of conclusion of the contract a sum of rs. 1,500/- was paid. the agreement was still kept oral. at that time the entirety of the land was under occupation of various occupiers and tenants and some suits were also pending. in paragraph 7 of the plaint it is alleged that the plaintiffs bought the land with all those problems being known to them.2. the plaintiffs are admittedly land developers. after the agreement for sale they obtained separate permissions from the urban land ceiling authorities for conveyance by the said three defendants. they also started negotiating with the occupiers of the land and specially with one chakraborty, a fisherman, whose pond the plaintiffs filled up. there are other defendants in the suit.3. the draft conveyance for approval was sent to the said defendants sometime in or about june 1978, which was promptly returned as approved with an endorsement that the completion should be made within one month. the endorsement doesn't appear in the paper book but we have examined and seen it in the original exhibit 4 series. but completion was not so made. quite some time later in the month of august 1979 the plaintiffs wrote a letter alleging suppression on the part of the defendants. they said, however, that they were willing to conclude the contract nonetheless.4. the defendants replied fixing the time for completion of the contract within 14.9.79. instead of taking steps for completion the plaintiffs wrote another letter on 12.9.79, this time stating in clear terms, that they had found out that almost one-third of the land was under a corporation road alignment scheme. the defendants again wrote on 18.9.79 again asking forcompletion of the sale. the completion was again not made. the appellants have argued before us that as far back as in 1963 there was a municipal resolution whereby a large part of the land in question came under the possibility of road alignment. that in april 1978 there was a notification in regard to the alignment. in the above correspondence when the plaintiffs complained about the road alignment to the defendants they took the stand that the alignment scheme had lapsed. according to the plaintiffs such a scheme never lapses. mr. dasgupta, appearing for the appellants showed us provisions from the state municipal laws and emphasized that the point taken by the defendants in this regard was legally erroneous.5. it appears that the balance consideration was not tendered by the plaintiffs, nor the deeds got executed by them, because they were seriously troubled about the road alignment. until not the municipal authorities have not taken any further steps in regard to the road alignment but the risk, however small might it be is still there and naturally the risk was there to an even greater degree in 1979, when the matter of road alignment was less old.6. the suit failed in the lower court on various grounds but also on the ground of lack of readiness and willingness. to our minds the issue of readiness and willingness is the turning point. after the matter of road alignment scheme came to the forefront, the plaintiffs did not do much, except wait. then on the 4th of august, 1981, the occupiers and the tenants of the land purchased their occupied portions of the land from the said three defendants. on the same date partition was earlier made amicably amongst mother and two daughters, so as to avoid the necessity of income-tax clearance certificates, and deeds of sale were also executed, on the said same day.7. by such sale the first three defendants got no more than about 10,000 rupees more than rs. 68,500/-. the area of the total land agreed to be purchased was one bigha, which is nearly 15,000 square feet.8. to show the hesitation felt by the plaintiffs in regard to the road alignment they wrote in september 1979 that the road alignment might require demarcation of the portion under a possibility of alignment. in the plaint, however, the plaintiffs averred that they were ready and willing to take the land with the risk of alignment for the full consideration, and when required, they also deposited in court the balance sum of rs. 68,500/-. when giving oral evidence the first plaintiff stated to the effect that on coming to know of the road alignment he felt hesitation about what to do, but at the time of the suit he was quite prepared to pay the full money and obtain conveyance. the evidence of the defendants was also to the same effect. their case was that the first plaintiff was not walking away from the contract, but then, he was not paying the money, being the balance consideration also.9. in these circumstances the legal point of readiness and willingness arises. the necessity of a person claiming specific performance to be continuously ready and willing to perform his part of the contract is basic to a suit for specific performance. there cannot be any break in the chain. see in this regard, the case of m.p. thirugnanam, : air1996sc116 . mr. ghosal, appearing for the respondents gave us this case. section 16(c) of the specific relief act states as follows:'16 specific performance of a contract cannot be enforced in favour of a person- (c) who falls to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.' 10. mr. dasgupta, appearing for the appellants, points out that although continuous readiness and willingness is a statutory requirement yet the actual tender of money is not essential in proving such readiness and willingness. in this regard he showed explanation (1) of section 16 which is as follows:'(1) where a contract involved the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;'11. then mr. dasgupta said that in the approved draft conveyance a clause was inserted and approved to this effect, that the title to the land to be conveyed shall be without blemish or defect. the document is in bengali, stating that the share shall be 'nirday o nlrdosh'. according to him the sellers were unable to perform this part of their obligation, because they could do nothing about the risk of the municipal road alignment. in this regard mr. dasgupta placed before us section 12 of the specific relief act. the said section and its first three sub-sections are set out below:'12(1) except as otherwise hereinafter provided in this section, the court shall not direct the specific performance of a part of a contract.(2) where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of wither party, direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency.(3) where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either- (a) forms a considerable part of the whole, though admitting of compensation in money; or(b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party- (1) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause {b), the consideration for the whole of the contract without any abatement; and(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.' 12. mr. dasgupta's submission was that his clients were ready and willing to pay, and have now deposited, the entire consideration money as per the plaint and thus came within the terms of the said section, specially the third sub-section. the risk of road alignment admitted of no computation for compensation in money. the plaintiffs were ready and willing to pay the entire consideration agreed upon, and make no claims in regard to that part of the contract, for conveyance of blemishes title, which the defendants were unable to perform on their part. according to mr. dasgupta this was sufficient proof of readiness and willingness on the part of the plaintiffs. the get over the difficulty of the time lag between 1979 and december 1981, when the suit was filed, he relied upon the case of madamsetty, reported at : [1965]2scr221 . according to him the suit was filed within the period of limitation. according to the law laid down by the supreme court, mere delay in filing the suit would not defeat the plaintiffs' claim of equitable specific performance. that, according to mr. dasgupta is the law in india. indeed, in the above case there are clear indications that delay and mere delay, which does not cause any serious prejudice to the other side, will not, in india, by itself, defeat the claim for specific performance. in our opinion, however, the point in this case is not about delay, but about readiness and willingness of the plaintiffs to perform their part of the contract, i.e., the continuous readiness and willingness of the plaintiffs to pay the balance consideration of rs. 68,500/-.13. in our opinion, the words 'the essential terms of the contract which are to be performed by', the plaintiffs, referred to in section 16(c) mean, -and must mean, those essential terms which are to be performed for the plaintiffs to be entitled to claim specific performance.14. where the defendant is unable to perform the entirety of the contract, and the plaintiff calls for specific performance of it nonetheless, and the matter does not admit of compensation in money, the plaintiff must not only give up his rights for the inability of the defendant to perform totally at the time of hearing of the suit, but the plaintiff must also be continuously ready and willing to perform his part of the contract from the date of the agreement. what the plaintiff has to do finally at the trial, he has to make up his mind about, finally and unequivocally, even when the suit has not been filed, and the time to file the same is simply and slowly running out. in other words, and in our case, it was not enough for the plaintiffs merely to relinquish their claims for the defendants inability at the time the suit was heard, but it was also an obligation of the plaintiffs to be ready and willing to pay rs. 68.500/- notwithstanding the possibility of a road alignment, at all material times, even before the filing of the suit section 12 does not in any manner curtail the obligation under section 16(c).15. it might have been quite excusable for a land developer to feel some hesitation, as a prudent businessman, but the businessman's prudence has nothing to do with the continuous readiness and willingness. if the plaintiffs were not ready and willing to pay rs. 68,500/- at all material times, they fell outside the scope of section 16(c), and specific performance they could never obtain. regarding the explanation to section 16 quoted above, in our opinion, this does not mean that a purchaser is relieved of his obligation to pay the consideration sum even when the seller is ready and willing tocomplete the deed and asks for such completion and payment of the balance purchase price. if that were the law, a purchaser could simply refuse to pay the money impunity, and pay it only after the suit was filed. that would be absurd, and that is why that is not the correct view in law.16. mr. ghosal, appearing for the defendants-sellers submitted, that, three times the sellers has asked for completion of the sale; once when returning the draft conveyance, and twice in subsequent letters, but the plaintiffs did not pay the money even then. this could only mean that they were not ready and willing to conclude the contract; at that time they felt their businessman's hesitation. we agree with the submission of mr. ghosal. the subsequent purchasers, being the occupiers of the land, also appeared through several sets of learned advocates before us, but their notice of the contract of may 1977 is undeniable. entering into any details of facts in this regard will be a wastage of time. however, if the main defendants being the two sisters successfully resist the suit, the subsequent purchasers will also be benefited thereby. in our opinion, for the reasons given above, the two sisters do successfully resist the plaintiffs' claim. we are, therefore, in agreement with the lower court that the suit of the plaintiffs should be dismissed. the appeal is therefore, dismissed with costs.stay of operation of this appellant decree is prayed for on the part of the appellants but the prayer is turned down.urgent certified xerox copy of the judgment be supplied to the learned advocates appearing for the parties, if applied for.s.n. banerjee, j.i agree
Judgment:

A.N. Ray, J.

1. This is an appeal by the plaintiffs from a judgment and decree of the lower Court whereby their suit for specific performance was dismissed. The agreement was entered into by and between the plaintiffs and the first three defendants, being mother and two daughters. It appears that the common agent of both sides was one Sushil Kumar Dutta, husband of Mira, one of the daughters. Since the filing of the appeal the mother Tara Sundari has expired. The agreement was oral, and was entered into in May 1977. For rendering his services the son-in-law, Sushil Kumar Dutta was himself to get from the purchasers a sum of Rs. 10,000/- but the consideration for purchase of the land was Rs. 70,000/-. At the time of conclusion of the contract a sum of Rs. 1,500/- was paid. The agreement was still kept oral. At that time the entirety of the land was under occupation of various occupiers and tenants and some suits were also pending. In paragraph 7 of the plaint it is alleged that the plaintiffs bought the land with all those problems being known to them.

2. The plaintiffs are admittedly land developers. After the agreement for sale they obtained separate permissions from the Urban Land Ceiling Authorities for conveyance by the said three defendants. They also started negotiating with the occupiers of the land and specially with one Chakraborty, a fisherman, whose pond the plaintiffs filled up. There are other defendants in the suit.

3. The draft conveyance for approval was sent to the said defendants sometime in or about June 1978, which was promptly returned as approved with an endorsement that the completion should be made within one month. The endorsement doesn't appear in the Paper Book but we have examined and seen it in the original exhibit 4 series. But completion was not so made. Quite some time later in the month of August 1979 the plaintiffs wrote a letter alleging suppression on the part of the defendants. They said, however, that they were willing to conclude the contract nonetheless.

4. The defendants replied fixing the time for completion of the contract within 14.9.79. Instead of taking steps for completion the plaintiffs wrote another letter on 12.9.79, this time stating in clear terms, that they had found out that almost one-third of the land was under a Corporation Road Alignment Scheme. The defendants again wrote on 18.9.79 again asking forcompletion of the sale. The completion was again not made. The appellants have argued before us that as far back as in 1963 there was a municipal resolution whereby a large part of the land in question came under the possibility of road alignment. That in April 1978 there was a notification in regard to the alignment. In the above correspondence when the plaintiffs complained about the road alignment to the defendants they took the stand that the alignment Scheme had lapsed. According to the plaintiffs such a Scheme never lapses. Mr. Dasgupta, appearing for the appellants showed us provisions from the State Municipal Laws and emphasized that the point taken by the defendants in this regard was legally erroneous.

5. It appears that the balance consideration was not tendered by the plaintiffs, nor the deeds got executed by them, because they were seriously troubled about the road alignment. Until not the Municipal authorities have not taken any further steps in regard to the road alignment but the risk, however small might it be is still there and naturally the risk was there to an even greater degree in 1979, when the matter of road alignment was less old.

6. The suit failed in the lower Court on various grounds but also on the ground of lack of readiness and willingness. To our minds the issue of readiness and willingness is the turning point. After the matter of road alignment Scheme came to the forefront, the plaintiffs did not do much, except wait. Then on the 4th of August, 1981, the occupiers and the tenants of the land purchased their occupied portions of the land from the said three defendants. On the same date partition was earlier made amicably amongst mother and two daughters, so as to avoid the necessity of Income-tax clearance certificates, and deeds of sale were also executed, on the said same day.

7. By such sale the first three defendants got no more than about 10,000 rupees more than Rs. 68,500/-. The area of the total land agreed to be purchased was one bigha, which is nearly 15,000 square feet.

8. To show the hesitation felt by the plaintiffs in regard to the road alignment they wrote in September 1979 that the road alignment might require demarcation of the portion under a possibility of alignment. In the plaint, however, the plaintiffs averred that they were ready and willing to take the land with the risk of alignment for the full consideration, and when required, they also deposited in Court the balance sum of Rs. 68,500/-. When giving oral evidence the first plaintiff stated to the effect that on coming to know of the road alignment he felt hesitation about what to do, but at the time of the suit he was quite prepared to pay the full money and obtain conveyance. The evidence of the defendants was also to the same effect. Their case was that the first plaintiff was not walking away from the contract, but then, he was not paying the money, being the balance consideration also.

9. In these circumstances the legal point of readiness and willingness arises. The necessity of a person claiming specific performance to be continuously ready and willing to perform his part of the contract is basic to a suit for specific performance. There cannot be any break in the chain. See in this regard, the case of M.P. Thirugnanam, : AIR1996SC116 . Mr. Ghosal, appearing for the respondents gave us this case. Section 16(c) of the Specific Relief Act states as follows:

'16 Specific performance of a contract cannot be enforced in favour of a person- (c) Who falls to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.'

10. Mr. Dasgupta, appearing for the appellants, points out that although continuous readiness and willingness is a statutory requirement yet the actual tender of money is not essential in proving such readiness and willingness. In this regard he showed explanation (1) of Section 16 which is as follows:

'(1) where a contract involved the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court;'

11. Then Mr. Dasgupta said that in the approved draft conveyance a clause was Inserted and approved to this effect, that the title to the land to be conveyed shall be without blemish or defect. The document is in Bengali, stating that the share shall be 'Nirday O Nlrdosh'. According to him the sellers were unable to perform this part of their obligation, because they could do nothing about the risk of the municipal road alignment. In this regard Mr. Dasgupta placed before us Section 12 of the Specific Relief Act. The said Section and its first three Sub-sections are set out below:

'12(1) Except as otherwise hereinafter provided in this Section, the Court shall not direct the specific performance of a part of a contract.

(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the Court may, at the suit of wither party, direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency.

(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either-

(a) forms a considerable part of the whole, though admitting of compensation in money; or

(b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party-

(1) in a case falling under Clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under Clause {b), the consideration for the whole of the contract without any abatement; and

(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.'

12. Mr. Dasgupta's submission was that his clients were ready and willing to pay, and have now deposited, the entire consideration money as per the plaint and thus came within the terms of the said Section, specially the third Sub-section. The risk of road alignment admitted of no computation for compensation in money. The plaintiffs were ready and willing to pay the entire consideration agreed upon, and make no claims in regard to that part of the contract, for conveyance of blemishes title, which the defendants were unable to perform on their part. According to Mr. Dasgupta this was sufficient proof of readiness and willingness on the part of the plaintiffs. The get over the difficulty of the time lag between 1979 and December 1981, when the suit was filed, he relied upon the case of Madamsetty, reported at : [1965]2SCR221 . According to him the suit was filed within the period of limitation. According to the law laid down by the Supreme Court, mere delay in filing the suit would not defeat the plaintiffs' claim of equitable specific performance. That, according to Mr. Dasgupta is the law in India. Indeed, in the above case there are clear Indications that delay and mere delay, which does not cause any serious prejudice to the other side, will not, in India, by itself, defeat the claim for specific performance. In our opinion, however, the point in this case is not about delay, but about readiness and willingness of the plaintiffs to perform their part of the contract, i.e., the continuous readiness and willingness of the plaintiffs to pay the balance consideration of Rs. 68,500/-.

13. In our opinion, the words 'the essential terms of the contract which are to be performed by', the plaintiffs, referred to in Section 16(c) mean, -and must mean, those essential terms which are to be performed for the plaintiffs to be entitled to claim specific performance.

14. Where the defendant is unable to perform the entirety of the contract, and the plaintiff calls for specific performance of it nonetheless, and the matter does not admit of compensation in money, the plaintiff must not only give up his rights for the Inability of the defendant to perform totally at the time of hearing of the suit, but the plaintiff must also be continuously ready and willing to perform his part of the contract from the date of the agreement. What the plaintiff has to do finally at the trial, he has to make up his mind about, finally and unequivocally, even when the suit has not been filed, and the time to file the same is simply and slowly running out. In other words, and in our case, it was not enough for the plaintiffs merely to relinquish their claims for the defendants Inability at the time the suit was heard, but it was also an obligation of the plaintiffs to be ready and willing to pay Rs. 68.500/- notwithstanding the possibility of a road alignment, at all material times, even before the filing of the suit Section 12 does not in any manner curtail the obligation under Section 16(c).

15. It might have been quite excusable for a land developer to feel some hesitation, as a prudent businessman, but the businessman's prudence has nothing to do with the continuous readiness and willingness. If the plaintiffs were not ready and willing to pay Rs. 68,500/- at all material times, they fell outside the scope of Section 16(c), and specific performance they could never obtain. Regarding the explanation to Section 16 quoted above, in our opinion, this does not mean that a purchaser is relieved of his obligation to pay the consideration sum even when the seller is ready and willing tocomplete the deed and asks for such completion and payment of the balance purchase price. If that were the law, a purchaser could simply refuse to pay the money impunity, and pay it only after the suit was filed. That would be absurd, and that is why that is not the correct view in law.

16. Mr. Ghosal, appearing for the defendants-sellers submitted, that, three times the sellers has asked for completion of the sale; once when returning the draft conveyance, and twice in subsequent letters, but the plaintiffs did not pay the money even then. This could only mean that they were not ready and willing to conclude the contract; at that time they felt their businessman's hesitation. We agree with the submission of Mr. Ghosal. The subsequent purchasers, being the occupiers of the land, also appeared through several sets of learned advocates before us, but their notice of the contract of May 1977 is undeniable. Entering into any details of facts in this regard will be a wastage of time. However, if the main defendants being the two sisters successfully resist the suit, the subsequent purchasers will also be benefited thereby. In our opinion, for the reasons given above, the two sisters do successfully resist the plaintiffs' claim. We are, therefore, in agreement with the lower Court that the suit of the plaintiffs should be dismissed. The appeal is therefore, dismissed with costs.

Stay of operation of this appellant decree is prayed for on the part of the appellants but the prayer is turned down.

Urgent certified xerox copy of the judgment be supplied to the learned advocates appearing for the parties, if applied for.

S.N. Banerjee, J.

I agree