- (1.) THIS appeal is directed against the judgment and decree of the Addl. Civil Judge, Moradabad, dated 28- 11-1972, dismissing the plaintiffs suit for specific performance of an agreement dated 30-12-1970.
(2.) THE plaintiff appellant filed the suit on the allegations that the defendants are the owners of the Bhumidhari land specified at the foot of the plaint, situated in village Moore within the Municipal limits of Moradabad. On 30-12-1970 defendants executed an agreement under which they agreed to sell the land in dispute to the plaintiff for a consideration of Rs. 20,000/-, out of which the plaintiff had paid a sum of Rs. 2600/- on the date of the execution of the agreement. THE plaintiff asserted that under the terms of the agreement the defendants had agreed to put him into possession by getting the foundation laid within one month of the execution of the agreement and to execute sale-deed within one year after receiving the balance amount of consideration. It was obligatory for the defendants to put the plaintiff into possession within one month of the agreement and the plaintiff was ready to pay Rs. 3400/- according to the terms of the agreement but the defendants failed to perform their part of the contract as they did not put the plaintiff into possession and further in spite of a written notice they failed to accept the remaining amount of consideration or to execute the sale-deed. THE plaintiff, has all along been ready and willing to perform his part of the contract; but, the defendants have failed to perform their part of the contract. Hence, the suit. The defendants filed written statement and contested the suit. The defendants pleaded that the plaintiff had failed to perform his part of the contract, inasmuch as he did not pay the sum of Rs. 3400/- within one month of the agreement in accordance with the terms of the agreement. The plaintiff failed to pay the amount, and he was not willing or ready to pay the same in spite of repeated demand made by them. On these pleadings the defendants asserted that the plaintiff was not entitled to any relief, The Trial Court held that the plaintiff was not entitled to the relief of the specific performance of the agreement as he himself was not ready or willing to perform his part of the contract. On these findings the Trial Court dismissed the plaintiff's suit, hence this appeal.
(3.) LEARNED Counsel for the appellant assailed the findings of the trial Court and urged that since time was not the essence of the contract and as such even it the plaintiff had failed to pay Rs. 3400/within one month from the date of the agreement, the defendants could not avoid the agreement as the plaintiff had all along been ready and willing to perform his part of the contract and the finding of the Crial Court is erroneous and unsustainable on the evidence on record. Before considering the legal questions and the authorities, cited by the parties' counsel. I consider it necessary to refer to the agreement dated 30-12-1970 (Ex. 21 executed by the defendants, to ascertain the true nature of the terms of the agreement. Under cl. (1) of the agreement the defendants agreed to execute the sale-deed within one year from the date of the execution of the agreement and to put the plaintiff into possession by helping him in laying down foundation and by getting the sale-deed registered after obtaining the remaining amount of the sale consideration. It, further, stipulated that if before the registration of the sale-deed, the defendants required money, then the plaintiff will pay the same to them and the amounts so paid shall be adjusted towards the sale consideration at the time of registration. Thereafter cl. (1) contained the relevant condition which has been the subject-matter of controversy in the suit. It reads as under :- "fariq doyam mublig 3400 rupaye under ek mah ke ada karenge jo jaruri va lajmi hoga. " The above condition stipulated that the second party, viz, the plaintiff shall pay a sum of Rs. 3400/- to the first party viz. , the defendants within one month of the agreement and this would be necessary and compulsory. Cl. (2) of the agreement contained the usual term and condition that if the defendants failed to execute the sale-deed within the stipulated period of time, it will be open to the plaintiff to get the same executed through Court. On a careful scrutiny of the terms of the agreement as contained in cl. (1) it is apparent that the plaintiff agreed to pay a sum of Rs. 3400/- to the defendants within one month of the agreement. The words used in the agreement leave no room for any doubt that this condition was mandatory in nature. The payment of Rs. 3400/- to the defendants was not dependent upon the delivery of possession to the plaintiff.;