D.K.Seth, J. - (1.) Preliminary These appeals are directed against the judgment and decree dated 31st August 1999 passed by the learned Civil Judge, Senior Division, 8th Court, Alipore in a suit for specific performance of contract for sale being in Title Suit No. 33 of 1995. Against the said decree, defendant No. 1, vendor, has filed F.A. No. 14 of 2000, while the defendant No. 2, subsequent purchaser, has preferred F.A. No. 13 of 2000. Both these appeals, by consent of the parties, have been heard together. We propose to dispose of both the appeals involving common question of fact and law, by a common judgment. 1.2. The plaintiff had succeeded in obtaining the decree of specific performance of the contract for sale of 1/7th share of the defendant No. 1 in the suit property. The said 1/7th share, however, was purchased by M/s. Ceean International Private Limited, appellant, in F.A. No. 13 of 2000 during the pendency of the suit. Submission on behalf of the appellant in F.A. 13 of 2000:
(2.) Mr. Sudhis Dasgupta appearing with Mr. Bagchi and Mr. Sanjoy Jain, relying upon the various facts and materials on record contended that it was the liability of the plaintiff to redeem the share of the defendant No. 1 from the mortgage with LIC and also to purchase the property subject to the encumbrances referred to in the agreement. From the records, it was clear that the plaintiff was not ready and willing throughout to perform the essential part of the contract, which was to be performed by him. 2.1. Referring to the amount due on account of the mortgage, he had pointed out that in order to avoid accrual of further interest, the defendant No. 1 intended to sell the property at the earliest. In that view of the matter, time was made essence of the contract, which has not been adhered to by the plaintiff. 2.2. According to him, in order to obtain decree for specific performance in view of section 16 of the Specific Relief Act (SR Act), the readiness and willingness throughout is to be proved. If there is any lapse or intervening period, no specific performance can be granted. He had relied upon the decision in Mst. Sahida Bibi v. Sk. Golam Muhammad, AIR 1983 Calcutta 216 to support his contention and also on Manik Chandra Bhowmik v. Abhoy Charan Gope, AIR 1917 Calcutta 283; His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, 1996(4) SCC 526; and P.R. Deb and Associates v. Sunanda Roy, 1996(4) SCC 423, in order to explain the meaning of readiness and willingness. 2.3. He contended further that time was essence of contract is to be gathered from the surrounding circumstances and the conduct of the parties. At the same time, the readiness and willingness is also to be ascertained from the surrounding circumstances as well as conduct of the parties. In support of his contention with regard to time as essence of contract, Mr. Dasgupta relied on Chand Rani v. Kamal Rani, 1993(1) SCC 519. 2.4. He further contended that the defendant No. 1, as subsequent purchaser, was not entitled to contest the suit with regard to the readiness and willingness of the plaintiff in view of the law governing the field when the suit was decreed. Therefore, the defendant No. 2 could not adduce any evidence nor could examine any witness. Neither it could have cross-examined the witnesses of the plaintiff. According to him, the cross-examination relates to the defence of the defendants. As such, if the defence with regard to the absence of readiness and willingness and the plaintiff, is unavailable to the defendant No. 2, it could not have cross-examined the plaintiff's witnesses. Inasmuch as, such cross-examination would be in aid of its such unavailable defence. In support Mr. Dasgupta had relied on K. Venkataramiah v. A. Seetharama Reddy and Ors., AIR 1963 SC 1526 (para 19). 2.5. Relying on section 20 of the SR Act, Mr. Dasgupta contended that the decree for specific performance is a discretionary power of the Court. According to him, the facts and circumstances of this case are such that such discretion should have been exercised by the Court instead of granting a decree for specific performance. In support he had relied on K.S. Vidyanandam & Ors. v. Vairavan, 1997(3) SCC 1. Submission on behalf of the appellant in F.A. 14 of 2000:
(3.) Mr. S.P. Roychowdhury, learned counsel appearing on behalf of the defendant No. 1, being the appellant in F.A. No. 14 of 2000 had supported Mr. Dasgupta. He had led us through various clauses of the agreement and had pointed out to the absence of readiness and willingness on the part of the plaintiff. He had reiterated the contention of Mr. Dasgupta to the extent that the plaintiff had been insisting upon performance at variance of the contract. He had also relied on the same decisions on which Mr. Dasgupta had relied. 3.1. In his deposition, the plaintiff himself had admitted that time was essence of the contract. But the plaintiff did not take any step despite being asked for by the defendant No. 1 through his letter. Unless a draft conveyance is handed over, the clearance under section 230A of the Income Tax Act could not be obtained and that the plaintiff had refused to deliver the draft conveyance. He pointed out that in terms of section 55 of the Contract Act, if a particular time is stipulated for performance of a particular term of a contract and if such part of the contract is not performed within such time, the contract becomes voidable at the option of the promise. In this case, according to him, the defendant is the promisee, while the plaintiff was a promisor, who promised to purchase the property on the terms and conditions stipulated in the agreement. 3.2. Relying on section 20 of the SR Act, he pointed out that the decree for the specific performance is discretionary. In the present case, the defendant No. 2 had purchased 5/7th share of the property after having got the mortgage released. As such the Court could not grant a decree for specific performance. Mr. Roychowdhury had relied upon the decision in K. Venkataramiah v. A. Seetharama Reddy and Ors., AIR 1963 SC 1526 (paragraph 13 and 16) and Ganesh Shet v. Dr. C.S.G.K. Setty & Ors., 1998(1) WBLR 303 (SC) (para 12 and 13) in support of his contention in addition to the decisions cited by Mr. Dasgupta. Therefore, the decree appealed against should be reversed and the suit for specific performance should be dismissed. Submission on behalf of the Respondent:;