1981 Supreme(All) 97

IN THE HIGH COURT OF ALLAHABAD
Deoki Nandan, J.
MOOL CHAND - Appellant
Versus
VED PRAKASH - Respondents
Second Appeal 1019 Of 1976
Decided On : 02/11/1981

Mere delay does not by itself preclude the plaintiff from obtaining specific performance if his suit is otherwise in time. The delay must be such that it may be properly inferred that the plaintiff has abandoned his right or on account of delay there must have been such a change of circumstances that the grant of specific performance would prejudice the defendant.

Headnote:

SPECIFIC PERFORMANCE OF CONTRACT - SALE OF LAND - AGREEMENT TO SELL LAND AT RS. 6 PER SQ. YARD - TIME OF THE ESSENCE - DEPOSIT OF EARNEST MONEY - FAILURE TO EXECUTE SALE DEED WITHIN TIME - FORFEITURE OF EARNEST MONEY - WAIVER OR ABANDONMENT OF CONTRACT - SPECIFIC RELIEF ACT, 1963, SECTIONS 16(C), 20.

Fact of the Case:

Plaintiff and defendant entered into an agreement for the sale of land at Rs. 6 per sq. yard. The sale deed was to be executed within one month. Plaintiff paid Rs. 1,000 as advance and received a receipt. The agreement included a provision for a 10 feet wide passage on the south of the land to be excluded in calculating the area of the land to be sold and the price to be paid therefor. The land was to be measured and a site plan was to be prepared on scale showing the passage to be so carved out, before the execution of the sale deed. The defendants were to become Bhumidhars by depositing 10 times the land revenue, and to obtain a Bhumidhari sanad before the execution of the sale deed. Plaintiff attended the registration office on the agreed date but the defendants failed to turn up. The defendants did not inform the plaintiff about the deposit of 10 times the land revenue with the government and the acquisition of Bhumidhari rights and the grant of Sanad even after the agreed date. Plaintiff came to know that the defendants had acquired Bhumidhari rights and obtained a Sanad recently but had not got a site plan prepared for carving out the 10 feet wide land for passage in order to work out the exact area of the land to be sold. Plaintiff was ready and willing to perform his part of the contract and pay the balance consideration. The defendants asserted that the amount of Rs. 1,000 paid by the plaintiff had been forfeited. Hence the suit for specific performance of the contract.

Finding of the Court:

1. The parties entered into an agreement on 21-4-1966 for the sale of the land in dispute at the rate of Rs. 6 per square yard. 2. The defendants committed breach of the contract. 3. The amount of Rs. 1,000 paid as advance does not stand forfeited to defendant No. 1. 4. The plaintiff is entitled to the relief of specific performance of the contract.

Issues: 1. Did the parties enter into an agreement on 21-4-66 for the sale of the land in dispute @ Rs. 6/- per square yard? 2. Which of the parties committed breach of agreement? 3. Does the amount of Rs. 1,000 paid as advance stands forfeited to defendant No. 1? 4. To what relief, if any, is the plaintiff entitled?

Ratio Decidendi: 1. The defendants were not justified in forfeiting the earnest money and rescinding the contract by their notice dated 6th July, 1966, since the plaintiff was not obliged in law to go about hankering after the defendants or to enter into fruitless controversy with them before filing the suit. 2. The plaintiff was justified in refusing or omitting to take the sale unless the defendants had obtained the Bhumidhari Sanad and had apprised the plaintiff of the fact of having done so, by notice in writing, since it is indisputable that the defendants did not do so at any point of time before 5th July, 1966 or even thereafter till the receipt of the plaintiffs notice dated 28th April, 1967. 3. The plaintiff was entitled in law to ignore the defendants notice dated 24th June, 1966 and not to attend the registration office on 5th June, 1966, and further on in not doing anything, and rather in waiting till he was informed by the defendants by notice in writing that they had obtained bhumidhari sanad or sanads for the land agreed to be sold, as required by his first notice dated 20th May, 1966. 4. The plaintiff did not waive or abandon his right to specific performance of the contract for sale, by not replying to the defendants notices dated 24th June, 1966 and 6th July, 1966 for the plaintiff had already made his position clear in the first notice which he sent on 20th May, 1966 nor was the plaintiff bound to act immediately on receipt of the defendants reply dated 15th May, 1967, Ext. 15 to his notice dated 28th April, 1967, for the defendants did not in that reply say that the bhumidhari sanad had been obtained. 5. The court would not be justified in refusing to enforce the specific performance of the contract for sale in the present case in the exercise of its discretion on the guidelines provided by Section 20 of the Specific Relief Act, 1963. 6. The plaintiff had performed or had always been ready and willing to perform the essential terms of the contract which were to be performed by him.

Final Decision: Appeal allowed. Suit for specific performance of the agreement decreed with costs throughout. Plaintiff to deposit Rs. 20,840 in the trial court within three months and defendants to execute the sale deed conveying the area of 37701/4 sq. yards to the plaintiff and put him into actual possession of the land sold, within 2 weeks of being informed of the deposit. In case of failure, plaintiff entitled to have the sale deed executed by the court and obtain possession thereon by the process of court.