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2013 Supreme(Cal) 152
IN THE HIGH COURT OF CALCUTTA
TOUFIQUE UDDIN, J.
Smt. Bina Rani Sarkar
Vs.
Smt. Hashi Rani Ghosh & Ors.
S.A. No. 20 of 1990
Decided On : 22.03.2013
For the appellant: Mr. Sudipta Moitra, Mr. Pijush Kanti Khanra, Mr. Somnath Khanra Mr. Prithviraj De
For the respondents: Mr. P. B. Sahu, Mr. Sudhakar Biswas, Mr. A. K. Pal
In the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the court may infer that it is to be performed in a reasonable time if the conditions are evident (i) from the express terms of the contract; (ii) from the nature of the property and (iii) from the surrounding circumstances, for example, the object of making the contract.
Headnote:
SPECIFIC PERFORMANCE - Contract for sale of land - Time being the essence of the contract - Plaintiff's failure to perform his part of the contract within the stipulated time - Suit for specific performance - Maintainability.
Fact of the Case:
Suit for specific performance of a contract for sale of land. The plaintiff agreed to purchase the suit land from the defendant at a sum of Rs. 22375/-. The plaintiff paid Rs. 2001/- on 19.7.79 to the defendant No. 1 as advance money for which one bainanama deed was executed in favour of the plaintiff. It was agreed that defendant No. 1 would execute the sale deed in respect of the suit land within 60 days after taking the balance money of Rs. 20374/-. The plaintiff failed to perform his part of the contract and did not execute and register the sale deed.
Finding of the Court:
The plaintiff did not perform his part of the contract within the stipulated time. The plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time was of the essence of the contract.
Issues: 1. Whether the suit is maintainable in its present form? 2. Whether the suit is barred by the Specific Relief Act? 3. Whether the suit is barred by Section 55 of the Indian Contract Act? 4. Whether the suit is bad for defect of parties? 5. Whether the plaintiff is entitled to get a decree as prayed for?
Ratio Decidendi: 1. The plaintiff did not perform his part of the contract within the stipulated time. The plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time was of the essence of the contract. 2. The essential term of the contract was executing the sale deed within the stipulated period. He did not perform his part of the contract within the stipulated time. The High Court was right in refusing to enforce the contract. It being a discretionary remedy, the High Court has exercised sound judicial discretion to negate the relief of specific performance of the contract.
Final Decision: The Second Appeal stands dismissed. The respondent, however, is directed to refund the earnest money of Rs. 2001/- alongwith compound interest thereon @10% p.a. within 1(one) month from the date of communication of this direction.
TOUFIQUE UDDIN, J. :
This appeal arose out of judgment and decree passed by the learned Additional District & Sessions Judge, 6th Court, Midnapore on 27.1.89 in other Appeal No. 120 of 1988 thereby reversing the judgment and decree passed by the learned Assistant District Judge, 1st Court, Midnapore dated 15.4.88 in other suit No. 169 of 1979. During pendency of the appeal some of concerned persons died and their legal heirs have duly been substituted and brought on record.
2. In the background of this appeal the fact in a nutshell is that there was a suit for specific performance of contract for sale. The suit land alongwith other lands measuring 86 decimals as described fully in the Schedule to the plaint previously belonging to Hijli Cooperative Society Ltd. was settled to defendant No. 1 Rabindra Kumar Ghosh and his elder brother Birendra Kumar Ghosh by a registered deed of settlement being No. 1764 dated 19.4.50. The defendant nos. 1 and 2 while in possession jointly, there was a partition between them and the suit land fell to the share of defendant No.1. By virtue of that partition he became exclusive owner of the property. He is a dealer of the M.R. Shop and had supply business. So, he wanted to sale the suit land to the plaintiff at a sum of Rs. 22375/-. The plaintiff agreed to purchase the suit land from defendant No. 1 and paid Rs. 2001/- on 19.7.79 to the defendant No. 1 as advance money for which one bainanama deed was executed in favour of the plaintiff. It was agreed that defendant No. 1 would execute the sale deed in respect of the suit land within 60 days after taking the balance money of Rs. 20374/-. It was further settled that defendant No. 1 would obtain permission to sale the suit land from Hijli Cooperative Society Ltd. and the plaintiff would be a member of the said society. Few days after, the plaintiff collected balance money and requested defendant No. 1 to execute the deed. The defendant No. 1 stated that he arranged for getting permission from the society and assured to execute the sale deed in favour of the plaintiff. The plaintiff also filed application to become a member of the society. The defendant No. 1 being in need of money for his business etc. took Rs. 4301/- on 14.8.79 and further Rs. 4000/- on 15.8.79 from the plaintiff and also assured that on getting permission from the society the defendant No. 1 would execute the sale deed. The plaintiff as such paid Bainamoney of Rs. 2001/-and also the advance money of Rs. 8301/- i.e., in all Rs. 10302/-. Several times the plaintiff requested defendant No. 1 to execute deed by taking the balance money of Rs. 12073/- as she was ready and willing to perform her contract. The defendant No. 1 failed to perform his part of contract and did not execute and register the sale deed. By practicing fraud he realised Rs. 10302/-from the plaintiff. The plaintiff gave notice by a registered post and asked the defendant No. 1 to execute the sale deed on 19.9.79 or within one month after taking the balance money and accordingly, the plaintiff alongwith her husband waited at Kharagpur Sub-registry Office on 19.9.79. The defendant No. 1 refused to accept the registered letter. He is trying to transfer the suit land to some other person.
3. The defendant nos. 2 and 3 did not contest the suit but defendant No. 1 contested the suit by filing a written statement, denying all material allegations therein. The specific case of the defendant No. 1 was that the plaintiff on request failed to pay the balance money and get the sale deed executed. The wife of defendant No. 1 fell ill and he was in need of money for her treatment. So, he sent a letter on 10.9.79 to get the deed executed after payment of balance money of Rs. 20376/- making it clear that if the plaintiff failed to do so, the defendant No. 1 would not be liable for the same and the bainanama would be liable to be cancelled. The defendant obtained N.O.C. from majority of the Directors but the plaintiff
