M. C. JAIN, J. - (1.) THIS is a defendant's appeal in a suit for specific performance of" the contract of sale of 1/2. share of the suit-shop. The plaintiff's suit was decreed by the learned Additional District Judge, Sirohi on 18-12-76 and the defendant was directed to execute the sale-deed of his share of the shop described in para 1 of the plaint in favour of the plaintiff on payment of a sum of Rs. 12,500/- by the defendant before the Sub-Registrar. It was also directed that the defendant shall bear the expense of stamp-papers, registration etc. Two months' time was allowed to execute the sale-deed and give vacant possession of the shop to the plaintiff.
(2.) THE plaintiff Jhamatmal instituted a suit with the allegations that the parties to the suit purchased the suit-shop as joint property and were carrying on business in partnership in the name and style of M/s Sheoganj Engineering Works. As the disputes arose, so, through arbitration of their own elder brother Shittaldass, the partnership was dissolved and it was agreed that the defendant would purchase half share of the plaintiff in the shop in question by paying a sum of Rs. 12,500/-on or before 19-10-74. It was further stipulated that if the defendant Kanhaiyalal fails to purchase half share upto 19-10-74, then, the defendant would vacate the shop and deliver possession thereof to the plaintiff Jhamatmal and would execute the sale deed and get the same registered at his expense on payment of Rs. 12,500/- by Jhamatmal. It was also stipulated between the parties that M/s Sheoganj Engineering Works will remain in possession of the rented shop situated at Holiwala Market, Sheoganj for business and the defendant Kanhaiyalal would be responsible for making payment of rant of that shop till he pays Rs. 12,500/- and after receipt of Rs. 12,500/- by the plaintiff Jhamatmal, Jhamatmal will make payment of rent of the rented shop situated in Holiwala Market, Sheoganj. According to the plaintiff, the defendant did not pay a sum of Rs. 12,500/- before 19-10-74 and when the plaintiff asked the defendant to discharge his obligation to sell 1/2 share to the plaintiff, the defendant gave wrong notice dated 7-11-74. It was stared in the notice that the defendant in agreement with the plaintiff had made an agreement for sale of the shop in question in favour of Premchand and Chandrabhan for Rs. 35,000/- and to earn profit by dividing half and half THE defendant stated that the price of half share Rs. 12,500/-was offered to the plaintiff on 1-10-74. THE plaintiff in his reply to the notice denied the contents of the notice and insisted for sale of 1/2 share as contemplated in the agreement. It was averred by the plaintiff that the plaintiff was always ready and willing to discharge his obligation under the agreement and prayed for a decree of specific performance. The defendant submitted his written statement in which he admitted that Shitaldass was appointed as Arbitrator, who gave an award on 19-10-71, which was accepted by both the parties. It was alleged that the date 19-10-74 was not the essence of the contract as there was stipulation in the agreement that the defendant shall continue to make payment of the rent of the shop of Shah Ratanchand Sheshmal till he makes payment of Rs. 12500/ -. The date was mentioned in the agreement only with a view that payment of money may be made early and the plaintiff may not be liable to make payment of rent for a long time. The plaintiff had a right to purchase 1/2 share of the shop in question only under the agreement. It was also averred that the plaintiff accepted the rent of the shop of Shah Ratanchand Sheshmal upto 13-11-74, which money amounting to Rs. 1875/- was paid on 12-11-74. Further rent for the period from 14-11-74 to 13-2-75 for three months at the rate of Rs. 150/-per month to the tune of Rs. 450/-, was sent by Cheque through registered post on 15-2-75. The defendant had complied with the terms of the Award. When the defendant offered a sum of Rs. 12,500/- the plaintiff thereupon told the defendant that the defendant is selling the business of M/s Sheogaj Engineering Works, so, he may also sell the suit shop and the shop would fetch a good price. The enhanced price shall equally be distributed between them and both will be benefited. The defendant accepted the proposal of the plaintiff being the younger brother. The defendant thereupon entered into the agreement with the vendees Premchand and Chandrabhan for the sale of the suit-shop in the sum of Rs. 35,000/-on 16. 10. 74 and accordingly informed the plaintiff. The business of M/s Sheoganj Engineering Works was also sold in which there were four partners. The Muhurat of the new shop was done on 25. 10. 74 and the business was agreed to be started by the partners w. e. f. Kartik Sud-1 Samvat 2031 and the sale-deed of the shop was agreed to be executed and registered on Migsar Sud-1 Samvat 2031. The defendant informed the plaintiff for execution of the sale deed after obtaining a sum of Rs. 17,500/- in favour of the vendees through a registered letter dated 17. 11. 74. The plaintiff afterwards changed his mind and gave a wrong reply to the defendant's notice. The notices are exchanged. As the plaintiff broke the promise as a result of which, the defendant had suffered a huge loss as the agreement for the sale of the shop and business were cancelled by the vendees. An objection was also taken that if any right has accrued to the plaintiff for seeking specific performance, that right stood waived by the plaintiff on receipt of the rent of the shop, which was on rent with M/s. Sheoganj Engineering Works in Holiwala Bazar. The defendant, in the end, prayed that the plaintiff's suit be dismissed. The following issues were framed by the trial court as under: - "1. Whether the defendant committed breach of the terms of the Award dated 19. 10. 71? 2. Whether the plaintiff is entitled to mesne profits at the rate of Rs. 200/- per month for the use and occupation of the premises after 19. 10. 74? 3. Whether time was not the essence of the contract hence the terms of agreement can not be enforced as-mentioned in para 2 of the written statement? In order to prove his case, the plaintiff Jhamat Mal examined himself as P. W. 1 and produced his son P. W. 2 Laxmandass. In rebuttal, the defendant Kanhaiyalal examined himself as D. W. 1 and produced Shitaldass (DW 2) and his own son Chandrabhan (DW 3 ). The learned Additional District Judge, after hearing the arguments, decided issues. No. 1 and 3 in favour of the plaintiff and issue No. 2 in favour of the defendant and against the plaintiff. In view of his findings, on issues No. 1 and 3, the plaintiff's suit for specific performance was decreed. Hence, this appeal by the defendant. The plaintiff also filed the cross-objection in respect of dismissal of the claim of mesne profits.
(3.) I have heard Mr. Lekh Raj Mehta, learned counsel for the defendant-appellant and Mr. P. R. Singhvi, learned counsel for the plaintiff-respondent. The principal question in this case is as to whether the time was the essence of the contract. According to the plaintiff, payment of Rs. 12,500/- was to be made on or before 19. 10. 74 and if by this date, the payment is not made, a very valuable right would accrue to the plaintiff to purchase 1/2 share of the defendant Kanhaiyalal for a sum of Rs. 12,500/- and Kanhaiyalal was under an obligation to deliver vacant possession of the suit-shop. The agreement also contemplates that the defendant Kanhaiyalal shall continue to make payment of rent of the reined shop, which would remain in possession of the plaintiff till Rs, 12,500/- is paid by the defendant and after payment of Rs. 12,500/- the rent of the rented shop shall be paid by the plaintiff. The crucial question is as to whether on the basis of the term relating to the liability of payment of rent by the defendant till a sum of Rs. 12,500/- is paid by him to the plaintiff, renders the date stipulated by the parties for making payment of Rs. 12 500/- and executing the sale-deed, in-effective. What was the intention of the parties on 19. 10. 74, when the Award was given by Shri Shitaldass and the parties agreed to the terms of the Award. The original Award and agreement is Ex A/1 and copy whereof is Ex. 2, which is also signed by them. It may be stated that, three years time was allowed to the defendant to make payment of Rs. 12,500/- and it was clearly stipulated under the Award Agreement by the parties, that in case, payment of the amount is not made upto 19 10. 74, the defendant Kanhaiyalal would be under an obligation to deliver vacant possession of the shop to Jhamatmal and shall get the sale-deed executed and registered at his expense after accepting a sum of Rs. 12,500/- from Jhamatmal. The second term of making payment of rent by the defendant Kanhaiyalal of the rented shop till he makes payment of Rs. 12,500/- to Jhamatmal, cannot be read in the manner, so as to render the date 39. 10. 74 ineffective. A very valuable right was created in favour of Jhamatmal and Kanhaiyalal was under an obligation to deliver vacant possession of the suit-shop on accepting a sum of Rs. 12,500/-from Jhamatmal. Kanhaiyalal was allowed three years' time for making payment of the value of 1/2 share. By inserting the second term, it cannot be conceived that the parties extended the time of execution of sale-deed and of giving possession of the shop beyond three years. It cannot be conceived that the parties intended not to create any right in the plaintiff Jhamatmal to purchase 1/2 share on making payment. An obligation to make payment of rent by Kanhaiyalal appears to have been created, so that, Jhamatmal may not be liable for payment of rent for the rented shop as the defendant would remain in possession of the shop in question and payment of price of 1/2 share was deferred upto 3 years. If the document is read as a whole, the second term would be read in the manner, so that the main term may not be rendered ineffective. If the second term would have been an 'overriding term then, the parties would have clearly and unequivocally stated that on payment of rent beyond 19. 10. 74 and on non-payment of Rs 12,500/-upto 19. 10. 74 no right of purchase would arise in favour off he plaintiff. There would have been a clear stipulation in this regard. Simply because the words used in the second term are ;