Judgement

Appeal from a judgment and decree of the High Court (February 17, 1913) reversing a judgment and decree of Macleod J. at the trial.

By an agreement in writing dated July 8, 1908, and made in the Gujarathi language, the respondent agreed to sell to the appellant certain leasehold land for Rs. 85,000, of which Rs. 4000 were paid as deposit or earnest money upon the execution of the agreement. It was agreed that the respondent should make a marketable title. Clause 2 provided that Rs. 80,500 should be paid on the signing of the conveyance, which was to be prepared and received within two months from the date of the agreement, and Rs. 500 on the transfer of the land after the conveyance had been registered. Clause 5, as translated, provided as follows "On payment of the Rs. 81,000 due by the purchaser to the vendor as mentioned in clause 2 the conveyance is to be got executed by the vendor. But should I not pay the amount within the fixed period given then I shall have no right to Rs. 4000 paid this day to you as earnest money, and if I prefer any claim the same is null and void. After this date the vendor of this property has authority in every way to sell the same to another." Clause 7 provided that the grass on the land for the current monsoon having been sold for Rs. 10,500, the vendor was to give credit for that amount. A correspondence as to two matters of title (referred to in the judgment) ensued between the parties respective Bombay solicitors. In the course of this correspondence the respondents solicitors upon three occasions before September 7, 1911, stated without contradiction that time was of the essence of the contract. On that date the appellant changed his solicitors, and his new solicitors wrote to the respondents solicitors contending for the first time that time was not of the essence of the contract; they stated that their clients money was ready and would be paid on completion and that he was willing to pay interest till that took place. On the same day the respondents solicitors gave notice rescinding the contract and forfeiting the deposit or earnest money, but afterwards wrote extending the time till September 19, without prejudice, and claiming that the time so extended should be essential. On September 19 they again wrote cancelling the agreement. On October 6, when, as their Lordships found, the appellants reasonable requisitions were still unanswered, the appellants solicitors gave a final notice of rescission and forfeiture of the deposit.

On November 7, 1911, the appellant instituted the suit in the High Court for specific performance and in the alternative for return of the earnest money, and damages. The respondent by his defence alleged that the agreement was rescinded, and, further, that the appellant by his delays and conduct had disentitled himself to relief.

The suit was tried by Macleod J., who decreed specific performance as prayed. The learned judge was of opinion that time was not of the essence of the contract as made, and that it had not become so subsequently by sufficient notice given by the respondent to the appellant. He found that the delay which had occurred in the completion had not been unjustifiable on the part of the present appellant.

The High Court in its appellate jurisdiction (Sir Basil Scott C.J. and Sir N. G. Chandavarkar J.) reversed this decision. The learned Chief Justice was of opinion, upon the authority of Hudson v. Temple (( 1860) 29 Beav. 536.) and Barclay v. Messenger (( 1874) 43 L. J. (Ch.) 449.), that effect should be given to clause 5 of the agreement according to its terms, and that that clause made time of the essence of the contract. He considered also that the attitude of the appellant in the matter of the title had been unreasonable, and that the delay was really due to his not having the money to carry out the completion. Sir N. G. Chandavarkar J. held that the strict terms of the agreement should be given effect to and that the subsequent cor