Mrs. Sujata V. Manohar, J. - (1.) Civil Appeal No. 4631 A of 1993 is by original defendant to the suit challenging the decree of specific performance which has been passed in appeal by the High Court of Calcutta against the appellant. The judgment and decree of the High Court in appeal is dated 28th of August, 1991. By this judgment and decree, the judgment and order of the trial Court dismissing the respondent's suit for specific performance was set aside. The High Court granted to the respondent a decree for specific performance of the contract in question and directed the appellant to execute the deed of conveyance as set out therein on the respondent paying to the appellant the amounts set out therein. The decree provided that the respondent shall make these payments with interest as specified therein within a period of three months from the date of the judgment; and the appellant was directed to execute the documents within three months thereafter. The respondent, however, did not make payment within specified period which expired on 27th of November, 1991. The respondent, however, ultimately made an application dated 3rd of February, 1992 before the High Court for extension of time for making payment under the decree by a further period of three months. The appellant opposed this application. The High Court by its order dated 26th May, 1993 has declined to grant any extension of time for payment of the said amounts holding, inter alia, that in the facts and circumstances of the case it would cause hardship, serious prejudice and injury to the opposite party if any further extension of time is given thereby reopening the decree. The application of the respondent for extension of time has been dismissed by the High Court thus resulting in the respondent's suit for specific performance standing dismissed.
(2.) Civil Appeal No. 4631 of 1993 filed by the respondent from the judgment and order of the High Court dated 26th of May, 1993. For the sake of convenience the appellant in Civil Appeal No. 4631 A of 1993, that is to say the original defendant, is referred to as the appellant while the respondent in Civil Appeal No. 4631A of 1993, that is to say the original plaintiff, is referred to as the respondent.
(3.) The appellant is the owner of certain immovable property bearing No. 30. Gariahata Road, South Calcutta. By the agreement dated 24th of October, 1977 the appellant agreed to sell to the respondent the said property for a sum of Rs. 9 lakhs on the terms and conditions set out in the agreement of sale dated 24th of October, 1977. Under the terms of this agreement a sum of Rs. 25,000/- was to be paid at the time of execution of the agreement. A further sum of Rs. 4 lakhs was to be paid within five months from the date of the agreement and the balance amount was to be paid at the time of conclusion of the purchase, timebeing of the essence of the contract. Under Clause 4 of the agreement , after the title of the appellant was accepted by the respondent, the respondent was required to send to the appellant's advocate a draft to the proposed conveyance in order to enable the appellant to apply for and obtain the income-tax clearance certificate under Section 230-A of the Income-tax Act and for permission of the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976. Under Clause 6 of the agreement the appellant was required to hand over vacant possession of the said property on completion of sale except for possession of four shop rooms in the front portion. Clauses 11,13 and 14 of the agreement are as follows: "11. And it is further agreed if ultimately the Conveyance is to be executed in favour of a Cooperative Housing society to be initiated by the said P. R. Deb and Associates as nominee of the said Purchaser herein and a further Agreement may be entered into between the Promotor of that Housing Society and the Vendor and the said Agreement be registered at the Office of the District Registrar at Alipore, 24-Parganas and the Vendor shall have to give necessary consent letter to the Co-operative Housing Society to the effect that she has agreed to sell the land and the buildings thereon to the Cooperative Housing Society. 13. On the vendor's making out a marketable title to the said property free from all encumbrances whatsoever and on her complying with the obligations under this Agreement, if the purchaser fails to complete the purchase within the time and in the manner hereinbefore mentioned, the Vendor thereupon shall have the full power of rescinding this Agreement by giving notice in writing to the Purchaser or its said Advocate and the said earnest money of Rs. 25,000/- shall in that event stand absolutely forfeited by the Vendor as and by way of liquidated damages and the Vendor shall have further rights to sue the purchase for specific performance of this Agreement and for other reliefs. 14. It is clearly understood and agreed that further payment of Rs. 4,00,000/- will not be treated as earnest money for the operation of this clause. In case the transaction falls through the said sum of Rs. 4,00,000/- has to be refunded forthwith." ;