A party to a contract is not required to make a formal tender of performance when the other party has repudiated the contract.

( 1 ) THIS is a plaintiff's appeal which arises out of a suit brought by him for specific performance of a contract for the sale of the property in suit. The relevant facts are almost all admitted ones.

( 2 ) PREMISES No. 83, Bagmari Road in the eastern suburbs of Calcutta originally belonged to the plaintiff and his co-sharers. The northern portion of the said premises came to be possessed by the plaintiff alone. On or about 4-2-1941 the plaintiff executed in favour of the defendant company, a conveyance in respect of the separated northern portion of the said premises for and consideration of Rs. 10,000/ -.

( 3 ) THE plaintiff's case is that he was in urgent need of Rs. 10,000/ -. He had proposed to the defendant Company for an advance of Rs. 10,000/- on the security of the said property. The defendant refused to accept the property on mortgage but was agreeable to pay Rs. 10,000/-on the plaintiff executing a conveyance in respect of the said property. The defendant also agreed to execute an agreement for re-sale simultaneously with the execution of the conveyance for a consideration of Rs. 10,001/- on condition that the said consideration was paid and the transfer obtained within two years of the execution of the agreement. The plaintiff executed the conveyance on 4-2-1941. On 10-2-1941 such an agreement also was signed. On 26-11-1942 i. e. within twenty-two months of the date of the agreement the plaintiff offered to the defendant company to complete the purchase and sent a draft conveyance for approval. Certain letters were exchanged between the parties thereafter and ultimately on 18-12-1942 the defendant refused to complete the transaction on the allegation that there had been no concluded or valid agreement of sale as alleged. Pour months alter the expiry of the period of two years from the date of the agreement the present suit was filed on 10-6-1943. The plaintiff claimed that he was entitled to specific performance of the, contract for sale on payment of Rs. 10,001/- at the cost of the plaintiff. There was an alternative prayer for a decree for redemption on the footing that the transaction was in reality a mortgage and for consequential reliefs.

( 4 ) THE defence as originally filed was on the footing that the alleged contract was not a genuine one. Even if it were found to be genuine the plaintiff was not entitled to any relief as he had not tendered the amount of consideration. The plaintiff was also alleged not to be in a position to make the payment at the relevant time and he could never have been ready and willing to perform the contract. The alternative claim for redemption was also resisted.

( 5 ) THE learned Subordinate Judge on the evidence came to the conclusion that the story as set up by the plaintiff that the original proposal by the plaintiff to the defendant was for a loan on a mortgage of the premises in question, which had been denied by the defendant, was true. Though the transaction was in fact intended to be a mortgage by conditional sale, in view of Section 53 (c), Transfer of Property Act, as amended by Act 20 of 1929, the transaction could not be treated as a mortgage by conditional sale. The conditions of re-sale had not been embodied in the conveyance Ex. C. Had the case not been governed by the proviso to Section 58 (c), Transfer of Property Act the transaction would have been held to be a mortgage by conditional sale. The then market value of the property was found to be much higher than Rs. 10,000/- which had been stated to be the consideration for the conveyance.

( 6 ) THE agreement Ex. 1 was found to be a genuine and valid document. The Court further came to the conclusion that the contract could be enforced specifically unless there was some other legal bar. The learned Subordinate Judge thereafter found that the plaintiff not having tendered the full amount as mentioned in the agreement he was not entitled to pray for specific performance of the contract. T