88A, Rash Behari Avenue, Calcutta, on receipt of the balance of companysideration of Rs.
Reliance was placed in support of the submission on the map annexed to the agreement.
The first companytention raised on behalf of the appellant is that the appeal before the High Court preferred by the respondent vendor was barred by limitation and the vendor had failed to make out any cause much less a sufficient cause, preventing her from preferring the appeal in time and the High Court was in error in exercising the discretion companydoning the delay and admitting the appeal to file.
A further direction was given on 26th August 1965 directing the plaintiff to deposit Rs.
Appeal by Special Leave from the Judgment and Order dated 6 6 74 of the Calcutta High Court in Appeal from Original Decree No.
The plaintiff claimed sale of one foot of land to the numberth of the property involved in dispute.
In that case litigant had applied for certified companyy of the decree soon after judgment I was pronounced but as the certified companyy was number given, appeal was filed without producing certified companyy of the decree and it was companytended that under the relevant rules appeal was number companypetent.
1, recites that Rs.
This order was modified by the High Court on 2nd February 1968 extending the time to make the deposit till 8th February 1968 retaining the original companydition.
If defendant vendor was companytesting the right of the plaintiff to ask for specific performance and that was companycluded adverse to her and if the vendor wanted to challenge the finding, it was incumbent upon her to prefer an appeal within the prescribed period of limitation.
2P, the plaintiff was informed that if the transaction was number companypleted within a week from 26th August 1956, the defendant would treat the agreement of sale as cancelled, forfeit the earnest money and claim damages for wrongful use and occupation of the premises.
The map prepared by the Commissioner was also referred to.
By the decree dated 30th April 1962 purchaser was directed to deposit the balance of companysideration within the stipulated time and at the request of the purchaser the time was first extended by the trial Court and then by the High Court in Civil Revision Application No.
It is number necessary to examine evidence on this point because both the trial Court which decreed the plaintiffs suit and the High Court which held against the plaintiff have recorded a companycurrent finding that the plaintiff was number entitled as part of the agreement to purchase one foot of land to the numberth of the property.
By Ext.
That has number been done and obviously the appeal preferred on 11th April 1968 was barred by limitation.
This application was rejected by the Court on 27th March 1968 and thereafter the appeal was preferred to the High Court on 11th April 1968.
The decree further directed that if the purchaser failed to deposit the amount within the stipulated time the suit would stand dismissed.
500 if there be an excess land of 1 companytah 88 sq.
Thereafter she moved an application for ascertaining the area of excess land which was being sold to her.
Since the date of the decree certain events occurred which would be numbericed while examining the first companytention on behalf of the appellant herein.
The agreement of sale, Ext.
When the appeal appeared on the cause list and was taken up for hearing, an application under s. 5 of the Limitation Act supported by an affidavit was filed on 8th August 1972 requesting the Court that in case the appeal is found to be barred by limitation the appellant before the High Court was prevented by a sufficient cause from preferring the appeal in time and, therefore, the delay should be companydoned.
2J dated 9th August 1956, 12th August 1956 was fixed as the date for execution and registration of the companyveyance.
Such is number the case.
86 A, Rash Behari Avenue, Calcutta.
The vendor interpreted the decree to be a preliminary decree, and awaited the purchaser to perform her part of the decree by depositing the amount in the Court.
Plaintiff purchaser preferred Civil Revision Application No.
The, application for companydonation of delay and the appeal were heard together and the High Court while holding that the appeal was barred by limitation, was further of the opinion that the vendor appellant before it was prevented by a sufficient cause from preferring the appeal in time, and accordingly companydoned the delay.
I on which suit was founded was executed on 8th February 1956.
An order was made by the trial Court on 14th May 1964 directing the plaintiff purchaser to take steps for appointment of a Commissioner to determine the area of extra land and the price to be paid for such land and she was required to take steps by 22nd May 1965.
There are certain events that occurred after the decree was drawn up on 25th May 1962 and before 11th April 1968 when appeal was preferred by the vendor of which brief numbere would be necessary.
The averments are factually companyrect and, therefore, it companyld number be said that they were made with a view to misleading the Registry of the High Court.
The suit was decreed on 30th April 1962.
Simultaneously, it was submitted that the material on record would unquestionably establish that the appellant before the High Court was prevented by a sufficient cause from preferring the appeal in time.
Present respondent, if she wanted to question the decree directing her to execute companyveyance, ought to have preferred appeal against the decree dated 30th April 1962.
Suit for specific performance of this agreement was instituted on 28th January 1957.
The material portion of the decree has been set out in extenso above and at first glance it would appear that the purchaser had to pay the I amount therein mentioned to the vendor within 30 days from the date of the decree and the vendor had to execute the deed of companyveyance failing which the amount was to be deposited in the Court within 15 days from the expiry of the first mentioned 30 days and submit the draft of companyveyance to the Court for getting it executed and registered through the Court.
beyond 2 companytahs 2 chittaks 38 sq.
Suffice it to say that the vendor preferred first appeal to the High Court of Calcutta on 11th April 1968.
feet or any money proportionate to the extent of the excess land, amicably within 30 days, of date, failing which the plaintiff do deposit in Court the companysideration thus due, together with the companyt of execution and registration and the draft of the companyveyance with stamp for the companyveyance within 15 days of the expiry of that 30 days for having the companyveyance executed and registered through Court.
1001/ were paid as earnest money and subsequently the defendant vendor received a further sum of Rs.
42,999 and a further sum of Rs.
2H, 17th July 1956 was fixed as the date for execution and registration and by Ext.
In this background it is number possible to accept the submission that even if the plaintiff was guilty of delay in performing her part of the companytract, in view of the fact that she is in possession of a substantial portion of the property which is the subject matter of this appeal, the delay should be overlooked and a decree for specific performance should be granted.
500 by 22nd September 1965 pursuant to the maps and report submitted by the Commissioner.
The companytract was to be companypleted by April 1956 it was number companypleted till 1957 even though the defendant after satisfying the queries of the plaintiff fixed different dates on different occasions calling upon the plaintiff to companyplete the transaction.
Some relevant and material dates may number be numbericed.
Again by letter dated 27th August 1956, Ext.
There was some dispute between the parties about the extra land which was to be sold and its price.
On behalf of the vendor respondent it was submitted that the appeal before the High Court was in time and at any rate the discretion exercised by the High Court companyld number be styled as perverse or unreasonable and this Court should number interfere with the same.
The suit was resisted by the defendants, inter alia, companytending that the plaintiff was number ready and willing to perform her part of the companytract more particularly saying that the vendor was in urgent need of money to pay off the mortgage debt and, therefore, she had entered into companytract for sale of property and that time was of the essence of the companytract and yet the plaintiff under one or the other false pretext put off performing her part of the companytract so that the vendor was companypelled to sell another valuable property bearing No.
Similarly, it is also number possible to entertain the companytention that the orders extending the time to deposit the balance of companysideration would result in amending the decree and as the appeal is preferred after such last amendment the appeal would be in time.
Accordingly, the High Court allowed the appeal and dismissed the plaintiff purchasers suit.
42999 plus Rs.
The purchaser deposited the balance of companysideration on 6th February 1968 whereupon the vendor defendant No.
1 has number companypleted the transaction and, therefore, a decree for specific performance should be made in favour of the plaintiff.
Thereafter when the Commissioner prepared the map and the Court fixed another date to deposit the amount, she questioned the order of the.
1 to execute and register a deed of sale in favour of the plaintiff in respect of the premises No.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Various terms of agreement would be referred to in the companyrse of this judgment.
She did number deposit the amount by the stipulated date She asked for extension of time.
It was decreed on 30th April 1962.
3195 of 1965 challenging the report of the Commissioner and the direction of the Court.
As stated earlier, an application requesting the Court to companydone the delay in preferring the appeal was filed on 8th August 1972.
46,000/ .
Thereafter plaintiff filled a suit.
Under this pretext she did number deposit the balance of companysideration.
In this suit she impleaded vendor defendant No.
The plaintiff filed the suit for a decree for specific performance of the companytract alleging that even though she is ready and willing to perform her part of the companytract the defendant No.
On merits, the High Court held that the vendor was always ready and willing to perform her part of the companytract but the plaintiff purchaser under one pretext or the other deferred performing her part of the companytract beyond reasonable time and was, therefore, number entitled to a decree for specific performance.
Purushottam Chatterjee and Rathin Das, for the Appellant.
The trial Court after an elaborate examination of the evidence decreed the suit on 30th April 1962 directing defendant No.
The companyrespondence that passed between the parties prominently brought out three points of dispute between the parties.
The decree was drawn up on 25th May 1962, the first appeal was preferred on 11th April 1968.
1 made an application on 25th March 1968 requesting the Court to draw the final decree so as to enable her to prefer first appeal.
It is true that in the Memo of Appeal it has been stated that the appeal is directed against the judgment and decree dated 30th April 1962 as amended and or modified by orders dated 8th January 1968 and 2nd February 1968.
An application under s. 5 of the Limitation Act supported by an affidavit was presented on 8th August 1972.
The decree in terms of the operative portion hereinabove mentioned was drawn up on 16th May 1962.
Court in the High Court and after the High Court dismissed her revision application and called upon her to deposit the balance of companysideration she again sought extension and ultimately deposited the amount on 6th February 1968.
In this companynection, the letter Ext.
1389 of 1976.
1056 of 1968.
The appeal against the decree dated 30th April 1962 preferred on 11th April 1968 was obviously barred by limitation.
The Judgment of the Court was delivered by DESAI J. This appeal by special leave by the original plaintiff questions the companyrectness of the decree dismissing her suit for specific performance of companytract for sale of premises No.
M. Mukherjee and N. R. Chowdhury, for the Respondents.
I and her son Hrishikesh Das as defendant No.
Agreement of sale, Ext.
Paribala Das on 8th February 1956 for a companysideration of Rs.
2,000/ from the plaintiff intending purchaser.
3195 of 1965 on two different occasions, viz.on 8th January 1968 and 2nd February 1968.
88 A, Rash Behari Avenue, Calcutta, entered into between her and deceased Smt.
Hence this appeal by the plaintiff purchaser.
The purchaser failed to deposit the amount within the stipulated time but on 14th June 1962 she sought some directions from the Court for making the deposit.
