HONOURABLE MR. JUSTICE v. NATH ORAL JUDGMENT Date
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.442 of 1985 =========================================================== 1. Bhrigunandan Prasad. 2. Harinandan Prasad. 3.Premnandan Prasd @ Premnandan. All sons of Sri Jainandan Prasad, Resident of Mohalla-Mdhopur , P.S.-Kotwali, District-Munger-------------------------------------------Plaintiffs-Appellants. Versus 1. Ashok Rajak. 2. Kishore Rajak. 3. Uttan Rajak @ Uttan Rajak. All sons of Late Nand Lal Rajak. 4. Savitri Devi, Wife of Safedi Rajak. 5. Anita Devi, Wife of Dr Umesh Rajak. 6. Soniya Devi, Wife of Dr Bijay Rajak. 7. Sabita Kumari. All 4 to 7 daughters of respondent no.1 (deceased) all 1 to 7 are resident of Mohalla-Gulzar Pokhar, P.O. and P.S.-Munger, District-Munger. 8. Mahadeo Shah, Son of Sakhi Chan Shah, Resident of Mohalla- Dalhatta, P.O.- Basudeopur, District-Munger at present occupying Khatal No.3 of the suit premises near Din Dayal Chowk Bazar, P.S., P.O.-Munger, District-Monghyr. 9. Santosh Jalan, son of Radha Krishna Jalan, styled as “Santosh Vastraliya” occupying Khatal No.4 of the suit premises near Din Dayal Chowk Bazar, P.S., Kotwali, District-Monghyr. 10. Akshay Lal Sharma, Son of Shiv Narain Sharma, Resident of Mohalla- Beecha Gaown, occupying Khatal No.5 of the suit premises styled as “APSARA” near Din Dayal Chowk Bazar, P.S.-Kotwali, P.O.-Munger, District-Monghyr. 11. Md Raseeduddin, Son of Sheikh Jasimuddin, occupying Khatal No.6 of the said house “ Steel Box making shop” near Din Dayal Chowk Bazar, Monghyr, Resident of Mohalla- Purabsarai near Durga Ashthan, P.O.-Monghyr, P.S.- Kotwali, District-Monghyr . 12. Sahabuddin, son of Late Wali Mahmmad Tailor, Dressco Tailors, Khatal No.7, near Din Dayal Chowk Bazar, P.S.-Kotwali, District-Munger. 13. Gopal Prasad @ Gopal Prasad Keshri, Son of Chandi Prasad Keshri, occupying Patna High Court FA No.442 of 1985 dt.21-10-2013 2 Khatal No.8 having tea stall near Din Dayal Chowk Bazar, P.O.- Monghyr, Residetn of Mohalla- Gulsar Pokhar P.S.-Kotwali, District-Monghyr. ---- Defendant 2nd party-Respondents =========================================================== Appearance : For the Appellant/s : Mr. Pushkar Narain Shahi, Sr. Adv with Mr. Manish Kumar-2, Adv and Madhusudan Sharma, Adv. For the Respondent/s : Mr. Prashant Vedsen, Adv. Mr. Subhah Chandra Bose, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 21-10-2013 V. Nath, J. The plaintiffs in the suit are the appellants in this appeal against the judgment and decree dated 30.05.1985 passed in T.S.No. 43/1984 by Sub Judge I, Munger dismissing the suit for specific performance of contract against the defendant no.1. 2. The admitted facts are that the suit house originally belonged to the plaintiffs. By registered sale deed dated 11.05.1979 the plaintiffs sold the suit house to the defendant no.1. Thereafter there was an agreement for sale between the parties on 14.05.1979 whereby the defendant no.1 agreed to sell the suit property to the plaintiffs. This agreement for sale dated 14.05.1979 has been admitted by the defendant no.1. 3. The plaintiffs, however, filed the suit stating that in spite of their request by registered notice dated 24.03.1984 to the defendant no.1 to accept the consideration money and execute the sale deed, the
Facts
defendant no.1 failed to do so. It is the further case of the plaintiffs Patna High Court FA No.442 of 1985 dt.21-10-2013 3 that thereafter the plaintiffs sent four persons to the shop of the defendant no.1 with request to accept the total consideration money and execute the sale deed but the defendant no.1 refused to abide by request. The plaintiffs have also averred that they are still ready and willing to perform their part of the contract by paying the consideration amount of Rs.62,000/- unconditionally to the defendant no.1 for execution of the sale deed for the suit house in their favour. 4. The case of the defendant no.1 is that the date of performance of contract was fixed to be 31.05.1984 and it was also agreed that 15 days notice before the fixed date was to be given by the plaintiffs to the defendant for execution of the sale deed. It is, however, his case that the plaintiffs did not adhere to the stipulations and sent a notice dated 21.04.1980 expressing their readiness to get the sale deed executed on the date to be fixed by the defendant no.1 and although the notice contained wrong facts but even thereafter the defendant became ready to accept the consideration amount of Rs.62,000/- and execute the sale deed by 10.05.1980. It is further case of the defendant that in his reply to the plaintiff on 23.04.1980 it was specifically mentioned that the plaintiffs were required to get the sale deed executed within 10.05.1980 and if they failed to get the sale deed executed within that date, the defendant would not execute the sale deed thereafter and the plaintiffs would forfeit their rights under Patna High Court FA No.442 of 1985 dt.21-10-2013 4 the agreement for sale. The defendant thus has come out with the case that since the plaintiff did not get the sale deed executed by 10.05.1980, the agreement for sale has lapsed and is no more subsisting, and therefore, the plaintiff is not entitled to get a decree for specific performance of contract against the defendants as prayed. The defendant has also alleged that the plaintiffs deliberately abandoned the contract by seeking the performance much before in the year 1980 itself and even thereafter they did not perform their part of the contract by getting the sale deed executed after paying the consideration money by 10.05.1980 and had even failed to file the suit for the said relief within 3 years reckoned from that date. 5. In view of the rival pleadings of the parties, the learned court below framed altogether 5 issues out of which issue nos.3, 4 and 5 were tried as material issues and are as follows:- Issue No.3- Whether the suit is bared by limitation? Issue No.4- Whether the plaintiffs have abandoned the contract by not tendering to the defendant the sum of Rs.62,000/- by 10.05.1980 as alleged by the defendant and the time was essence of the contract?. Issue No.5-Whether the plaintiffs are entitled to the relief claimed? 6. After scrutiny of the pleadings and evidence of the parties, Patna High Court FA No.442 of 1985 dt.21-10-2013 5 the learned court below has returned the finding that the plaintiffs have failed to perform their part of the contract and have also
Legal Reasoning
11. There is no dispute that the suit house originally belonged to the plaintiffs and they had earlier sold the same to the defendant by registered sale deed dated 11.05.1979. There is also no dispute that the defendant no.1 has agreed to sell the suit house to the plaintiffs and has executed the agreement for sale dated 14.05.1979 stipulating the terms of the agreement. From the perusal of the sale deed dated 11.05.1979 ( Ext.2) it does not appear that there was any reference of re-conveyance of the property to the vendors (plaintiffs). However, in the agreement for sale dated 14.05.1979 (Ext.1) there is mention of the sale deed dated 11.05.1979 earlier executed by the purchasers Patna High Court FA No.442 of 1985 dt.21-10-2013 10 (plaintiffs) in favour of the vendor (defendant no.1) but it does not transpire from the recitals therein that any re-conveyance, in the legal sense of the term, has been agreed. It appears to be an agreement for sale and purchase simpliciter in the sense of reciprocal arrangement imposing obligations and benefits on both the parties. The law in this regard has been also clearly spelt out by the Apex Court in the case of K.Simrathmulll Vs Nanjalingiah Gowder, AIR 1963 SC 1182 where it has been observed that the option to re-purchase is a privilege or concession granted to the person selling the property, and such option by its very nature has been held to be dependant entirely on the volition of the person to whom it has been granted and its exercise cannot be compelled by the person granting the option. In the facts of the present case, the right of the plaintiff of re-conveyance of the suit house in pursuance to the agreement for sale (Ext.1) has none of the characteristics of a privilege or concession granted to them, by the defendant-purchaser and therefore, the enforcement of such a contract is to be governed by the laws relating to the performance of reciprocal promises. 12. It is well settled by now that in an agreement for sale of immovable property, time is normally not the essence of the contract unless it appears unmistakably from the terms of the agreement or established by clear pleading and proof that the parties have intended Patna High Court FA No.442 of 1985 dt.21-10-2013 11 it to be so. This principle has been succinctly explained in the Constitution Bench decision of the Apex Court in the case of Smt Chand Rani Vs Smt Kamal Rani, AIR 1993 SC 1742. Mere incorporation in the written agreement of a default clause by itself is not the evidence of intention to make time essence of contract. It is also not the case of the defendant no.1 here that the parties intended to make the time essence of the agreement for sale between them. 13. However, much emphasis has been laid on behalf of the defendant on the clause in the contract providing for 15 days notice before the date fixed for execution of the sale deed and also on the clause providing for lapse of the agreement if the plaintiffs would fail to get the sale deed executed by paying the consideration money on the date so fixed. At this juncture it would be pertinent to take into notice the relevant recitals in the deed of agreement for sale (Ext. 1). “… blfy, eueksdhj oknk djrk gw¡ oks fy[k nsrk gw¡ fd rkjh[k bejkstk ls yxk;r ekg ebZ 1984 bZLoh ds vUnj eksdhj vygwe ekslQhu eks :0 62]000@& cklB gtkj :I;k nsdj tk;nkn equnjts [kkuk ua0 5 olhdk gktk dks otjh;s dsokyk c; ds o[kpZ eksdhj vysg ds rkehy dj nsus esa fdlh fdlhe dk mtwj ,rjkt ugha gksxk…………………………………………………………. Okks eksdhj vysg rkjh[k eksdjj ds 15 jkst igys eueksdhj dks otjh, uksfVl bldh [kcj dj nsaxs……………………………………………………….. ;g fd eksdhj vygwe rkjh[k eksdjjs ij dsokyk eueqdhj ls ugha djkosaxs rks Patna High Court FA No.442 of 1985 dt.21-10-2013 12 oSlh gkyr esa eu eksdhj dks dksbZ ik;oanh dsokyk c; djus dh ugha gksxh vkSj ;g ,djkjukek gktk jn oks csvlj gks tk;sxkA 14. From these recitals it is transparent that the provision for giving fifteen days notice before the date fixed for performance has been incorporated more way of convenience than as an integral part of the bargain. This provision has also been followed by a default clause which is also in usual terms apparently for the purpose of avoiding undue delay. Moreover there is also no pleading by the defendant that the parties to the contract intended the date so fixed to be the essence of the contract. There is also no evidence aliunde to lead to this inference. It would be seemly here to reminisce the principle laid down by a three Bench of the Apex Court in the case of Gomathinayagam Pillai Vs Palaniswami Nadar AIR 1967 SC 868 where their Lordships have approvingly taken into notice the observation by the Judicial Committee in the case of Jamshed Kheduram Irani Vs Burjorji Dhunjibhai, AIR 1915 P.C.83 as follows. “….Under that law equity, which governs the rights of the parties in cases of specific performance of contracts to sell real estate, looks not at the letter but at the substance of the agreement in order to ascertain whether the parties, notwithstanding that they named a specific time within which completion was to take place, really and in substance intended more than that it should take place Patna High Court FA No.442 of 1985 dt.21-10-2013 13 within a reasonable time. Their Lordships are of opinion that this is the doctrine which the Section of the Indian Statute adopts and embodies in reference to sales of land. It may be stated concisely in the language used by Lord Cairns in Tilley v. Thomas, (1867) 3 Ch A 61: 'The construction is, and must be, in equity the same as in a Court of law. A Court of equity will indeed relieve against, and enforce, specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for completion, or for the steps towards completion, if it can do justice between the parties, and if (as Lord Justice Turner said in Roberts v. Berry, (1853) 3 De G. M. and G 284) there is nothing in the 'express stipulations between the parties, the nature of the property, or the surrounding circumstances', which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract. Of the three grounds . . . mentioned by Lord Justice Turner 'express stipulations' requires no comment. The 'nature of the property' is illustrated by the case of reversions, mines, or trades. The 'surrounding circumstances' must depend on the facts of each particular case'. Their Lordships will add to the statement just quoted these observations. The special jurisdiction of equity to Patna High Court FA No.442 of 1985 dt.21-10-2013 14 disregard the letter of the contract in ascertaining what the parties to the contract are to be taken as having really and in substance intended as regards the time of its performance may be excluded by any plainly expressed stipulation. But to have this effect the language of the stipulation must show that the intention was to make the rights of the parties depend on the observation of the time limits prescribed in a fashion which is unmistakable. The language will have this effect if it plainly excludes the notion that these time limits were of merely secondary importance in the bargain, and that to disregard them would be to disregard nothing that lay as its foundation "Prima facie, equity treats the importance of such time limits as being subordinate to the main purpose of the parties, and it will enjoin specific performance notwithstanding that from the point of view of a Court of Law the contract has not been literally performed by the plaintiff as regards the time limit specified…" 15. Examined on the anvil of the aforesaid principle, it is not too far to conclude that there is nothing in the recitals of the agreement (Ext.1) to indicate in unmistakable fashion that the parties thereto ever intended to make their rights under the contract depend on strict observation of the time limits mentioned therein. Rather the more conceivable inference from the recitals is that the parties, by incorporating the default clause, really intended the Patna High Court FA No.442 of 1985 dt.21-10-2013 15 performance of the contract to be within a reasonable time and to avoid undue delay. This aspect is also explained by absence of specific pleading in this regard by the defendant. 16. From the express term of the contract it is manifest that the plaintiff-purchasers have been given the right to get the sale deed executed at any time before 31.05.1984 by paying the consideration money. It is the case of the plaintiffs that they sent a registered notice through the receipt (Ext.6 A) dated 24.03.1984 requesting the defendant to accept the consideration money on 31.03.1984 and execute the sale deed within 15 days thereafter. It is, however, their further case that the said notice was returned unserved with the endorsement “not met, traceless, left without address” by the postal peon which they have alleged to have been collusively made. But the learned court below has discarded this notice on the ground that the plaintiffs were not entitled to give such notice two months before the date fixed i.e 31.05.1984. The plaintiffs‟ further case of making the request to the defendant by sending four persons to him on 01.04.1984 has also been discarded by the learned court below on the same ground that such oral notice could not have been given much before 31.05.1984 the fixed date. This reasoning assigned by the learned court below for not accepting the sending of notice by the plaintiffs to the defendant is clearly unsustainable in view of the Patna High Court FA No.442 of 1985 dt.21-10-2013 16 unambiguous term in the contract (Ext.1) fixing 31.05.1984 only as the outer limit for the performance of the contract. There is also nothing in the recitals of the deed of agreement (Ext.1) to show that the date 31.05.1984 was actually the date fixed for performance of the contract. In this view of the matter, the plaintiffs were not precluded to send notice on 24.03.1984 intimating the defendant their desire to get the sale deed executed. The receipt (Ext.6/A) shows that a registered letter to the defendant had been sent and there is no dispute about the address of the defendant mentioned therein. There is presumption that such letter must have reached to the addressee. Although the receipt of any such letter/notice has been denied by the defendant and it is also the case of the plaintiffs that the said letter was returned unserved but the plaintiffs have also examined P.W.2 Brajnandan Thakur who, according to the plaintiffs was one of four persons sent by the plaintiffs to the defendant, after the return of the registered letter unserved, with request for execution of the sale deed after accepting the consideration money. This witness is a resident of the Mohalla of the plaintiffs and has deposed that he met the defendant and his son Ashok Kumar in their shop and conveyed the message of the plaintiffs. The learned court below has disbelieved him on the ground that he has expressed no concern with the business of the plaintiff and further because he has not stated anything about Patna High Court FA No.442 of 1985 dt.21-10-2013 17 fifteen days notice before execution of the sale deed as required by the terms of the agreement. In my opinion the veracity of this witness cannot be doubted on these grounds. As discussed above, the term regarding fifteen days notice was only secondary to the main bargain and the failure of its strict adherence cannot frustrate the contract itself. Even otherwise also, the substance of the defendant‟s case is not the failure of the plaintiffs to adhere to the term of giving fifteen days notice rather that the contract is no more subsisting after 10.05.1980 when the plaintiffs failed to reciprocate to the requisition by the defendant for performance. 17. It is the defendant‟s case that much prior to 31.05.1984, the plaintiffs sent a notice dated 21.04.1980 (Ext.A) through their lawyer requesting the defendant to fix a date for performance of the contract by accepting the consideration money from the plaintiff and executing the sale deed thereafter, and in his reply(Ext.B) to the said notice, the defendant fixed 10.05.1980 (Ext.B)calling upon the plaintiffs to take the conveyance within that date with condition that in default of the compliance with the requisition, the contract would be treated as cancelled. The plaintiffs have denied to have received the said reply notice (Ext.B) claimed to have been sent to them by the defendant. To corroborate his case of sending this reply notice, the defendant has produced the certificate of posting (Ext.C) and has stated in his Patna High Court FA No.442 of 1985 dt.21-10-2013 18 deposition that the said reply notice (Ext.B) has been written by his son Utam Kumar and the address on the certificate of posting has been written by Arjun Das who was a „Taid‟ (advocate‟s clerk). It has also been accepted by the defendant that the reply notice (Ext.B) is not the carbon copy of the original but another copy of the notice prepared on the same day. However, the defendant has failed to examine Utma Kumar and Arjun Das as witnesses to corroborate the fact of preparation of the reply notice Ext.B and its dispatch under the certificate of posting, and has chosen mainly to rely upon certificate of posting (Ext.C) to establish those facts. It is well settled by the Apex Court in the case of State of Maharastra Vs Rashid Babubhai Mulani, AIR 2006 SC 825 that a certificate of posting has very little evidentiary value when the dispatch of such communication is disputed or denied. It has been observed by their Lordships as follows:- “ …A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by Post Office. But where a mere certificate of posting is sought, no record is maintained by the Post Office either about the receipt of the letter or the certificate issued. The case with which such Patna High Court FA No.442 of 1985 dt.21-10-2013 19 certificates can be procured by affixing ante-dated seal with the connivance of any employee of the Post Office is a matter of concern… In the absence of such a record, a certificate of posting may be of very little assistance, where the dispatch of such communications is disputed or denied….” 18. In view of this observation by the Apex Court, the finding by the learned court below only on the basis of the certificate of posting (Ext.C)that the reply notice (Ext.B) was sent by the defendant to the plaintiffs and would be deemed to have been received by the plaintiff becomes vulnerable. In absence of cogent evidence on behalf of the defendant to establish the necessary facts relating to the preparation and the dispatch of this reply notice and its receipt by the plaintiffs, it is difficult to accept that the same has been served upon the plaintiffs and they had the knowledge of the fact of fixation of the peremptory date 10.05.1984 by the defendant , failing which the contract would have stood cancelled. 19. Examining this aspect from another angle also, it does not appear from the terms of the contract and the facts and circumstances of the case that the defendant was within his rights to call upon the plaintiffs to get the sale deed executed by 10.05.1980 with condition that their failure to do so would result in the cancellation of the Patna High Court FA No.442 of 1985 dt.21-10-2013 20 contract itself. A party to a contract cannot by his unilateral act make the time essence of contract unless there is undue delay or default in performance of his part of the contract by the other party. This view is supported by the observation of the judicial committee in the case of Stickney Vs. Keeble , (191)AC 386 that “ if in a contract for the sale of land the time fixed for completion was not made the essence of the contract but the vendor had been guilty of undue delay, the purchaser may serve upon the vendor a notice limiting a time at the expiration of which he will treat the contract as at an end”. The defendant‟s case, as apparent from paragraph 9 and 17 of the written statement, is that the plaintiffs acted against the terms of the contract by sending notice to the defendant on 21.04.1980 for fixing a date for executing the sale deed as it was much prior to the date 31.05.1984, and therefore he fixed 10.05.1980 as the date for execution of the sale deed with the condition that thereafter the contract would stand cancelled. Though the plaintiffs have not denied the fact of sending notice to the defendant on 21.04.1980 in the plaint but during evidence it has been denied on their part that they had received the said reply (Ext.B) by the defendant fixing 10.05.1980 as the last date fixed for performance and as found earlier, the service of the letter in reply to the plaintiffs has also not been established by the defendant. According to the terms of the contract (Ext.1), the plaintiffs were Patna High Court FA No.442 of 1985 dt.21-10-2013 21 entitled to get the sale deed executed on any date up to 31.05.1984 and therefore by requesting the defendant to fix a date for execution of the sale deed in 1980, the plaintiffs cannot be said to have committed the breach of the terms of the contract justifying the fixing of 10.05.1980 by the defendant as the final date of performance with the condition of forfeiture of the right under the contract. The defendant‟s case on this premise that the plaintiffs thereby had abandoned the contract as they failed to get the sale deed executed by 10.05.1980 has manifestly no foundation in law or on facts. The learned court below has also erroneously held that the sending of notice by the plaintiffs in the year 1980 requesting the defendant to execute the sale deed was a “mischief” by the plaintiffs as they had no right to get the sale deed executed prior to 31.05.1984 and that, too, without giving clear 15 day‟s notice. The „second mischief‟ of the plaintiffs, found by the learned court below, is that in their notice dated 21.04.1980, they had characterized the earlier sale deed by them in favour of the defendant as mortgage with conditional sale and therefore had claimed their right to redeem the same. But no such fact has been mentioned anywhere in the written statement by the defendant and he has not raised any grievance against the plaintiffs on this basis. The finding by the learned court below regarding the „second mischief‟ by the plaintiff is clearly beyond the pleadings and Patna High Court FA No.442 of 1985 dt.21-10-2013 22 cannot be sustained. The finding by the learned court below, therefore, that the plaintiffs, in not getting the sale deed executed within the date (10.05.1980) fixed by the defendant, have abandoned the contract which therefore, did not subsist thereafter, is erroneous and deserves to be overturned. It is so done accordingly. 20. The plaintiffs have stated in the plaint that they have all along been ready and willing to perform their part of contract by paying the consideration amount to the defendant. The pass book of the State Bank Of India (Ext.7) in the names of the plaintiffs has been brought in evidence by the plaintiffs and the entry therein shows that on 07.05.1984, a sum of Rs. 62,000/- was available in the said account. The plaintiff no.1, examined as P.W.1, has stated in his examination in chief as well as in cross examination that he has been ready to get the sale deed executed after paying the money to the defendant. The learned court below, however, has come to the conclusion that the plaintiffs were not ready and willing to perform their part of contract firstly on the ground that the pass book (Ext.7) does not show that the amount of Rs. 62,000/- was available there on 10.05.1980 and secondly on the ground that the plaintiffs have not stated that they are still ready and willing to get the sale deed executed by paying Rs. 62,000/-to the defendant. The learned court below has also taken into notice another bank pass book of the Patna High Court FA No.442 of 1985 dt.21-10-2013 23 plaintiff (though not marked as exhibit) and has found that, though the plaintiffs had Rs. 62,000/- in this account in April 1980 but it did not show that the plaintiffs had this amount in May, 1980 and therefore the plaintiffs had no ready money on 10.05.1980. 21. By preponderant precedents, it is now well settled that the issue pertaining to readiness and willingness cannot be determined by a „straight jacket formula‟ and the entirety of facts and circumstances will have to be looked into in this regard. As such, in view of the discussions above, the conclusion of the learned court below on the issue of readiness and willingness of the plaintiffs is clearly not sustainable as there is evidence on record to show that the plaintiffs have the necessary fund with them to pay by way of consideration money and they have also expressed their willingness to get the sale deed executed by the defendant after paying the said amount. Accordingly this point is decided in favour of the plaintiffs. 22. The learned court below has held that the suit is barred by limitation as it has not been filed within 3 years reckoned from 10.05.1980, though it has also been observed that the suit is not bared by time if the original deed of agreement (Ext.7) is to be relied upon where the date of performance has been fixed as 31.05.1984. As held earlier, the date 10.05.1980 cannot be accepted as the last date of performance and even otherwise also, the plaintiffs have been found Patna High Court FA No.442 of 1985 dt.21-10-2013 24 to have no notice of such date, the period of limitation for the suit cannot be reckoned from 10.05.1980. From the agreement for sale (Ext.1) it is also evident that the date 31.05.1984 has been fixed within which the contract was to be performed. As found earlier, the plaintiffs have succeeded in establishing their case of sending the registered notice to the defendant sent on 24.03.1984 and making a verbal request for performance of the contract on 01.04.1984. Therefore in view of the second part of Article 54 of Limitation Act, the suit which has been filed on 05.04.1984 cannot be held to be barred by limitation. The finding by the learned court below that the suit is barred by limitation is accordingly, set aside. 23. In view of the aforesaid reasons and discussions, it is held that the plaintiffs are entitled to have a decree in their favour for specific performance of contract as prayed against the defendant. 24. In the result therefore, this appeal is allowed and the judgment and decree passed by the learned court below is, accordingly, set aside. The T.S.No.43/1984 filed by the plaintiffs is decreed. Devendra/Nitesh (V. Nath, J)
Arguments
abandoned the same by seeking performance against the agreed terms. It has been held that the plaintiffs were not entitled to get the deed of re-conveyance executed in their favour earlier than 31.05.1984 and even doing so they were required to send a notice to the defendant no.1 in order to reach him by 15.05.1984 giving a clear 15 days before 31.05.1984 which was the fixed date for performance. It has been further held that the plaintiffs committed “mischief” by sending notice dated 21.04.1980 containing wrong facts and requiring the defendant to execute the sale deed after receiving Rs.62,000/- but failed to get the sale deed executed before 10.05.1980 which was the date fixed by the defendant for execution of the sale deed in reply to the notice. It has been thus held that the plaintiffs have given up their right of re-conveyance of the suit house and abandoned the contract. The learned court below has also held that the suit was barred by limitation as it was to be filed within 3 years reckoned from 10.05.1980 which was the date fixed by the defendant for execution of the sale deed. On the basis of these findings the suit has been dismissed. 7. Assailing the impugned judgment, Mr. P.N.Shahi, the learned senior counsel appearing for the appellants has submitted that Patna High Court FA No.442 of 1985 dt.21-10-2013 6 the court below has committed error of law and facts both. It has been urged that the admitted agreement dated 14.05.1979 was an agreement for sale simpliciter but the learned court below has wrongly assumed the same to be a deed of re-conveyance. It has been further urged that the agreement for sale was admittedly relating to an immovable property and in such cases time is not the essence of the contract unless such intention in unmistakable term appears from the agreement or established by evidence. The learned senior counsel has argued that 31.05.1984 was the date within which the parties to the agreement were required to perform their part of the contract and the stipulation with regard to 15 days notice prior to the date fixed for performance was only subsidiary to the main agreement and could not have been interpreted to be an essential term of the contract non- performance of which would have frustrated the contract itself. It has been further submitted that the defendant could not have unilaterally fixed the date of performance also imposing the condition that the non-performance of the contract within that date would frustrate the contract itself. It has been finally submitted that the plaintiff has given notice to the defendant by registered post as well as by sending four persons to the defendant requesting him to accept the consideration money and execute the sale deed and thereafter they have filed the suit on 05.04.1984, after the refusal by the defendant to Patna High Court FA No.442 of 1985 dt.21-10-2013 7 execute the sale deed as agreed, which was well within limitation. The learned senior counsel has also pointed out that the learned court below has also erred in coming to the conclusion against the plaintiff on the point of readiness and willingness to perform their part of the contract. 8. Mr Prashant Vedsen, the learned counsel for the defendant no.1-respondent, while supporting the impugned judgment, has submitted that the plaintiff had no cause of action to file the suit in absence of 15 days notice prior to the date fixed for performance which was definitely 31.05.1984. It has been argued that the term regarding the 15 days notice is the essential part of the contract as the consequence for failure to adhere to the same resulting in forfeiture of the right of the purchasers has also been stipulated. It has been further urged that there is no evidence adduced on behalf of the plaintiffs to establish the valid service of notice before 15 days of the date fixed, and therefore, no relief for specific performance of contract can be granted to the plaintiffs. The learned counsel has further argued that after the notice dated 21.04.1980 by the plaintiffs, the defendant in his letter in reply had clearly fixed the date of performance of the contract by 10.05.1980 with further condition that the contract would stand frustrated after the said date in case of the non-performance by the plaintiffs but the plaintiffs even then did not choose to pay the Patna High Court FA No.442 of 1985 dt.21-10-2013 8 consideration amount to the defendant within the said period and therefore had knowingly incurred forfeiture of their rights under the contract. It has been further argued that the learned court below has correctly held that the period of limitation for the suit is to be reckoned from 10.05.1980, and therefore, has rightly held the suit to be barred by limitation as it was filed much after three years from that date. 9. In view of the rival contentions of the parties, the following points emerge for determination:- (I) Whether the date 31.05.1984, mentioned in the contract for sale dated 14.05.1979, was the date fixed for performance of the contract and whether the default clause in the said contract stipulating the performance of the contract by the plaintiffs within 15 days of the notice of the date fixed was an integral part of the contract, the non-compliance of which would have resulted in forfeiture of the rights of the plaintiffs under the contract? (II) Whether the plaintiffs have abandoned their right under the contract when they failed to pay the consideration money and get the sale deed executed by the defendant before 10.05.1980 which was the Patna High Court FA No.442 of 1985 dt.21-10-2013 9 date fixed by the defendant with condition of forfeiture of right of the plaintiffs thereafter? (III) Whether the suit can be held to be barred by limitation having not been filed within 3 years from 10.05.1980 which was the date fixed for performance by the defendant in his letter/reply (Ext.B)? (IV) (V) Whether the plaintiffs have ever been ready and willing to perform their part of the contract? Whether the findings by the learned court below are sustainable in law and on facts? 10. For convenience sake, all the points are taken up for determination.