Judgment

A. N. RAY, C.J.I. :- This appeal is by certificate from the judgment dated 15 October 1969 of the Bombay High Court in First Appeal No. 420 of 1963.

2. The trial Court by its judgment dated 24 June 1963 decreed the suit in favour of the appellant. The High Court reversed the judgment of the trial Court.

3. The pre-eminent question in this appeal is whether the respondent has been ready and willing to perform the agreement entered into with the appellant. The case of the appellant is that there was an oral agreement for sale of property consisting of agricultural land admeasuring 23 acres approximately for a sum of Rs. 17,000/-. The respondent from time to time paid Rs. 12,000/- to the appellant. The respondent was also in possession of the property. The appellant called upon the respondent to pay the full amount of purchase price. The respondent failed to do so. The plaintiff, on respondents refusal to perform the agreement, filed the suit.

4. In the suit the reliefs claimed were possession of the property and in the alternative a decree fro Rupees 10,500/- consisting of the principal sum of Rs. 5,000/- as the balance amount of purchase price and interest thereon amounting to Rupees 5500/-.

5. The principal defence was that the agreement for sale was only for Rs. 12,000/- and that the respondent paid the amount in full. The respondent characterised the suit as mean effort to recover illegally the additional price of the ostensible Rupees 5,000/-. The respondent also alleged that if the Court decided that the price of the property was agreed to be Rs. 17,000/-, then the respondent would ask the court to take into account the sum of Rs. 12,000/- paid by him and also the sum of Rs. 1500/- paid by him from time to time thereafter.

6. At the trial one of the issues was whether the appellant proved that the respondent entered into a Sauda on 24 January 1952 with the appellants father to purchase for Rs. 17,000/- the properties mentioned in Schedule A to the plaint. The other issues were whether the defendant- respondent proved that the properties were agreed to be purchased for Rs. 12,000/- A corollary to the issue raised in the written satemenbt was whether defendant proved the circumstances in which it was made to appear that the Sauda was for Rs. 17,000/-. In short the defendant alleged fraud against the appellant. The charge is that the appellant changed the figure to Rs. 17,000/-. The trial Court held in favour of the appellant and rejected the defence of the respondent.

7. Counsel for the respondent contended that the suit of the appellant was not maintainable. It was said that the appellant was not competent to maintain the suit by reason of provisions contained in Ss. 39 and 55 of the Indian Contract Act. The gist of the contention is that the appellant could not put an end to the contract if there was failure on part of the respondent to perform the agreement. The submission is fallacious. The case of the appellant has always been that the respondent refused to perform the agreement. The appellant all along asserted that the agreement was that the property was agreed to be sold only for a sum of Rupees 17,000/-. The respondent refused to perform the agreement. The suit therefore was competent and valid.

8. Another contention was raised by the respondent that the certificate was not competent because the value all along has not been over Rupees 20,000/-. This Court has held in the decision in State of Assam v. Basanta Kumar Dass, reported in 1973 (3) SCR 158 at p. 168 that the objection to valuation cannot be allowed to be taken at this late stage. But the graver objection to the respondent not being allowed to challenge the certificate is that if the respondent had taken this point at the time when the matter was heard in the High Court the appellant could have satisfied the High Court or the appellant would have failed. This Court in any event, if a certificate had been granted on a challenge being made, would have been i