SANDHYA RANI SARKAR Vs. SUDHA RANI DEBI

JUDGEMENT

(1.) This appeal by special leave by the original plaintiff questions the correctness of the decree dismissing her suit for specific performance of contract for sale of premises No. 88-A, Rash Behari Avenue Calcutta, entered into between her and deceased Smt. Paribala Das on 8th Feb. 1956 for a consideration of Rs. 46,000/-. The agreement of sale, Ext. I, recites that Rs. 1001/- were paid as earnest money and subsequently the defendant vendor received a further sum of Rs. 2,000/- from the plaintiff intending purchaser. Various terms of agreement would be referred to in the course of this judgment. The plaintiff filed the suit for a decree for specific performance of the contract alleging that even though she is ready and willing to perform her part of the contract the defendant No. 1 has not completed the transaction and, therefore a decree for specific performance should be made in favour of the plaintiff. In this suit she impleaded vendor defendant No. 1 and her son Hrishikesh Das as Defendant No. 2. The suit was resisted by the defendants, inter alia, contending that the plaintiff was not ready and willing to perform her part of the contract more particularly saying that the vendor was in urgent need of money to pay off the mortgage debt and, therefore, she had entered into contract for sale of property and that time was of the essence of the contract and yet the plaintiff under one or the other false pretext put off performing her part of the contract so that the vendor was compelled to sell another valuable property bearing No. 86-A, Rash Behari Avenue, Calcutta. The trial Court after an elaborate examination of the evidence decreed the suit on 30th April 1962 directing "defendant No. 1 to execute and register a deed of sale in favour of the plaintiff in respect of the premises No. 88-A, Rash Behari Avenue, Calcutta, on receipt of the balance of consideration of Rs. 42,999 and a further sum of Rs. 500 if there be an excess land of 1 cottah 88 sq. ft. beyond 2 cottahs 2 chittaks 38 sq. feet or any money proportionate to the extent of the excess land, amicably within 30 days, of date, failing which the plaintiff do deposit in Court the consideration thus due, together with the cost of execution and registration and the draft of the conveyance with stamp for the conveyance within 15 days of the expiry of the 30 days for having the conveyance executed and registered through Court ........... In case of default on the part of the plaintiff in complying with the above order the suit shall stand dismissed with costs and that the sum of Rs. ....... be paid by the ........ to the ....... on account of the costs of this suit, with interest thereon at the rate of ........ per cent per annum from this date to date of realisation." The decree in terms of the operative portion hereinafter mentioned was drawn up on 16th May 1962. Since the date of the decree certain events occurred which would be noticed while examining the first contention on behalf of the appellant herein. Suffice it to say that the vendor preferred first appeal to the High Court of Calcutta on 11th April 1968. When the appeal appeared on the cause list and was taken up for hearing, an application under S. 5 of the Limitation Act supported by an affidavit was filed on 8th Aug. 1972 requesting the Court that in case the appeal is found to be barred by limitation the appellant before the High Court was prevented by a sufficient cause from preferring the appeal in time and, therefore, the delay should be condoned. The application for condonation of delay and the appeal were heard together and the High Court while holding that the appeal was barred by limitation, was further of the opinion that the vendor appellant before it was prevented by a sufficient cause from preferring the appeal in time, and accordingly condoned the delay. On merits, the High Court held that the vendor was always ready and willing to perform her part of the contract but the plaintiff purchaser under one pretext or the other deferred performing her part of the contract beyond reasonable time and was, therefore, not entitled to a decree for specific performance. Accordingly, the High Court allowed the appeal and dismissed the plaintiff purchaser"s suit. Hence this appeal by the plaintiff purchaser.

(2.) The first contention raised on behalf of the appellant is that the appeal before the High Court preferred by the respondent vendor was barred by limitation and the vendor had failed to make out any cause, much less a sufficient cause, preventing her from preferring the appeal in time and the High Court was in error in exercising the discretion condoning the delay and submitting the appeal to file. On behalf of the vendor respondent it was submitted that the appeal before the High Court was in time and at any rate the discretion exercised by the High Court could not be styled as perverse or unreasonable and this Court should not interfere with the same. Simultaneously, it was submitted that the material on record would unquestionably establish that the appellant before the High Court was prevented by sufficient cause from preferring the appeal in time.

(3.) Some relevant and material dates may now be noticed. Agreement of sale, Ext. 1 on which suit was founded was executed on 8th Feb. 1956. Suit for specific performance of this agreement was instituted on 28th Jan. 1957. It was decreed on 30th April 1962. The decree was drawn up on 25th May 1962, and first appeal was preferred on 11th April 1968. An application under S. 5 of the Limitation Act supported by an affidavit was presented on 8th Aug. 1972. There are certain events that occurred after the decree was drawn up on 25th May 1962 and before 11th April 1968 when appeal was preferred by the vendor of which brief note would be necessary. The material portion of the decree has been set out in extenso above and at first glance it would appear that the purchaser had to pay the amount therein mentioned to the vendor within 30 days from the date of the decree and the vendor had to execute the deed of conveyance failing which the amount was to be deposited in the Court within 15 days from the expiry of the first mentioned 30 days and submit the draft of conveyance to the Court for getting it executed and registered through the Court. The decree further directed that if the purchaser failed to deposit the amount within the stipulated time the suit would stand dismissed. The vendor interpreted the decree to be a preliminary decree and awaited the purchaser to perform her part of the decree by depositing the amount in the Court. The purchaser failed to deposit the amount within the stipulated time but on 14th June 1962 she sought some directions from the Court for making the deposit. There was some dispute between the parties about the extra land which was to be sold and its price. An order was made by the trial Court on 14th May 1964 directing the plaintiff purchaser to take steps for appointment of a Commissioner to determine the area of extra land and the price to be paid for such land and she was required to take steps by 22nd May 1965. A further direction was given on 28th Aug. 1965 directing the plaintiff to deposit Rs. 42999 plus Rs. 500 by 22nd Sept. 1955 pursuant to the maps and report submitted by the Commissioner. Plaintiff purchaser preferred Civil Revision Application No. 3195 of 1965 challenging the report of the Commissioner and the direction of the Court. The Civil Revision Application was dismissed by the High Court on 8th Jan. 1968 and the High Court simultaneously extended the time for depositing the balance of consideration by three weeks from the date of the order making it conditional that in the event of default the suit would stand dismissed. This order was modified by the High Court on 2nd Feb. 1968 extending the time to make the deposit till 8th February 1968 retaining the original condition. The purchaser deposited the balance of consideration on 6th Feb. 1968 whereupon the vendor defendant No. 1 made an application on 25th March 1968 requesting the Court to draw the final decree so as to enable her to prefer first appeal. This application was rejected by the Court on 27th March 1968 and thereafter the appeal was preferred to the High Court on 11th April 1968. As stated earlier, an application requesting the Court to condone the delay in preferring the appeal was filed on 8th Aug. 1972.