- (1.) B. K. Sharma, J. Heard Counsel for the parties.
(2.) THIS is an appeal against the judgment and decree dated 15-4- 1983 passed by Sri C. P. Singh, IVth Additional District Judge, Agra in Original Suit No. 439 of 1975, Kishan Chand and others v. Bishambhar Nath Agrawal and others, whereby he had decreed the suit for specific performance of contract and directed the defendant No. 1-appellant Bishambhar Nath Agrawal to execute sale-deed within a period of 3 months on get ting the amount of sale consideration and rent upto 31-10-1975. He was also directed to obtain requisite permission from the District Magistrate, if necessary. It was further directed that in case Bishambhar Nath Agrawal would not comply with the decree within the period aforesaid the plaintiffs-respondents would be free to get sale-deed executed through court at the cost of Bishambhar Nath Agrawal. It was declared by the decree that after 31-10-1975, the plaintiffs-respondents 1-4 and defendant No. 2 to 6 (present respondent Nos. 5 to 9) were not liable to pay rent or interest to Bishambhar Nath Agrawal, defendant No. 1-appellant. The present suit was brought for specific performance of the agreement to reconvey house property No. 4/157 situated in Agra and for declaration that since after 31-10-75 the plaintiffs and defendants No. 2 to 6 were not liable to pay rent or interest to the defendant No. 1 with a prayer for adjustment of amounts, if any recovered from them or through the tenants against the amount payable to defendant No. 1 in the decree of specific performance. It was alleged that the major portion of the house property was oc cupied by plaintiffs-respondents No. 1 to 4 (the contesting respondents) while a minor portion was let out to tenants, that the plaintiffs No. 1 to 3 being in need of money approached the defendant No. 1-appellant for advance of loan who agreed to advance loan of Rs. 20,000 at the inter est of Rs. 11/2% per month but obtained one deed having ostensible character of a sale-deed and also a rent note on 25-4-1968 for securing interest (the deeds were signed by plaintiff No. 4 also) but it was agreed that these two deeds will be used only as security for the purpose of loan and the interest accruing thereon, that the said plaintiffs continued to live in the house as owners, that ultimately defendant No. 1- appellant Bishambhar Nath Agrawal started asserting his ownership over the property and so the contesting respon dents filed Original Suit No. 293 of 1973 in the Court of Civil Judge, Agra. The suit, however, was compromised on 12-11-1973 on the terms suggested by Bishambhar Nath Agrawal appellant under which the contesting respondents were to pay Rs. 1,20,120 and Bishambhar Nath Agrawal was to execute recon veyance deed within a period of 2 years, and interest was to be paid in the form of rent. It was further alleged that the plain tiffs- contesting respondents could not pay the interest amount and could pay only a sum of Rs. 9,180 but they made arrangement for the payment of the entire sale consideration and the entire balance of interest and requested Bishambhar Nath Agrawal defendant No. 1-appellant (hereinafter to be referred to as the appel lant) to execute the reconveyance deed in their favour and served him with notice dated 23-10-1975, that the appellant took no steps to obtain permission to execute the sale-deed under the provisions of the Temporary Ceiling Act, despite service of notice dated 23-10-1975, that the appel lant did not send any reply, that thereafter, the contesting respondents also sent a telegram dated 29-10-1975 requesting the appellant to come with permission to sale and execute the sale-deed but he did not send any reply to this notice also, that ultimately plaintiff- respondent No. 3 Mahesh Chand alongwith others ap proached the appellant to execute the sale-deed after obtaining permission but the appellant avoided to have any contact with them and so Mahesh Chand sent a telegram top the appellant from Gwalior but to that also no reply has been sent, that on 31-10-1975, the contesting respon dents reached the office of the sub-registrar, Agra with necessary stamps and financiers Permanand Puri and Vishnu Ram Nagar and remained there till eve ning but the appellant did not turn up, that they thereupon, sent another telegram to the appellant dated 31-10-1975 at 5. 20 p. m. but to that telegram also no reply has been sent by the appellant, that the con testing respondents had always been ready and willing to perform their part of the contract and even now they are ready and willing to perform the contract according to its true construction, that it was obligatory on the part of the appellant to have obtain permission for a sale but he did not do so and has been avoiding to perform his part of the contract with some ulterior motive, hence the suit. The appellant contested the I present suit. He admitted that the contesting respondents were in need of money but claimed that no loan was ever advanced to them as alleged. He claimed that the property in the suit had been sold to him for a consideration of Rs. 20,000 but the contesting respondents were allowed to remain in possession of the disputed property on a rent of Rs. 300 per month. He denied that the sale-deed and rent note were executed as securities for the alleged loan. He further claimed that the contest ing respondents paid rent to him till 25-10-1969 and failed to pay any further rent and so he had to serve with the notice of demand and ejectment and as a counter blast to the said notice, the said suit No. 293 of 1973 was filed by the contesting respondents for declaration, that they were the owners of the property and not his tenants, that when his notice of demand and ejectment matured, he filed Suit No. 30 of 1973 against the contesting respondents for recovery of rent, eject ment and mesne profits. He admitted that Suit No. 293 of 1973 was got decided in terms of the compromise. He claimed that similar compromise had been filed in Suit No. 730 of 1973 also and that consequently both the suits were decided in terms of the compromise. He claimed that under the terms of the aforesaid compromise the plaintiffs had to pay a sum of Rs. 1,02,120 within a period of two years starting from 1- 11-1973 and latest upto 31st October, 1975 to the defendant i. e. to him, that the plaintiffs could pay the said amount of Rs. 1,02,120 to him at one time in one instal ment, or in several instalments within the stipulated period of two years, but no ins talment could be less than the amount of Rs. 5,000 and such payment was to be made by the plaintiffs, to him through a crossed account-payee draft, in his favour on any bank at Gwalior, that besides the payment of the aforesaid amount of Rs. 1,02,120 within the stipulated period, as aforesaid the plaintiffs had also to pay rent and mesne profits at the rate of Rs. 1,530 per month, continuously with effect from 1-11-1973, and that or payment of whole amount of Rs. 1,02,120 plus upto date rent, the plaintiffs could avail the conces sion and indulgence from him and he in that case alone could execute a recon veyance deed in favour of the plaintiffs at their cost. It was also claimed by him that it was provided under the aforesaid compromise that in case the plaintiffs failed to pay the complete amount of Rs. 1,02,120 plus the rent within the stipulated period of two years according to the aforesaid terms, they will cease to have any right to get the said reconveyance deed executed in their favour from him and they have also to vacate the premises and that he could get them ejected from the premises in ex ecution of the decree passed in suit No. 30 of 1973 of the Court of II Addl. District, Judge Agra. It was also claimed by him that the plaintiffs committed breach of the terms of the said compromise and did not pay the amount of Rs. 1,02,120 within the aforesaid period of 2 years, that the plain tiffs also failed to pay the amount of rent or mesne profits regularly and did not pay any amount for the period after 30-4-1974, with the result that the decree passed in Suit No. 30 of 1973 became ex ecutable, that as aforesaid the plaintiffs can not avail of the concession and indul gence, which was allowed to them under the terms of the aforesaid compromise decree, as they have failed to pay his amount and thereby committed the breach of the terms of the agreement. The appellant also claimed that the contesting respondents neither offered to pay the amount nor were they ever ready and will ing to perform their part of the contract within the stipulated time, that they had no money to pay nor had any capacity to pay the amount to him and for that reason they committed breach of the terms of compromise. The allegations of the con testing respondents that they had arrange ment to pay sale consideration and rent etc. was denied by the appellants.
(3.) HE (the appellant) further claimed that time was essence of the contract and since the contesting respondents failed to perform the terms of the compromise, they lost their rights to seek specific per formance. It was also claimed in the alter native that mere offer of the payment of the amount was not enough, that the con testing respondents were under the obligation to actually pay the amounts to him within the stipulated time in the man ner provided under the compromise at Gwalior before seeking execution of reconveyance deed. It was further claimed by the appellant, that since the amount had not been paid to him under the terms of the compromise, he was under no obligation to seek any permission for transfer of the property under the Tem porary Ceiling Act. HE claimed that it was the contesting respondents who com mitted the breach of the contract. HE also claimed that the suit was barred by time. HE also claimed that the suit of the con testing respondents was barred by Section 47,c. P. C. The trial Court held that the suit was within the time, and the suit was also not barred by Section 47, C. PC, that the contesting respondents were always ready and willing to perform their part of the contract, that it was the appellant who had actually failed to perform his part of the contract. He held that the contesting respondents were not liable for rent from 31-10- 1975 onwards. He held that the contesting respondents are entitled to specific performance and consequently granted the decree for the same. Hence, this appeal had been prepared by the ap pellant.;