This letter also records that after the agreement between the proposed company operative society and the appellant is companypleted the respondent will.
The High Court by its order dated 26th of May, 1993 has declined to grant any extension of time for payment of the said amounts holding, inter alia, that in the facts and circumstances of the case it would cause hardship, serious prejudice and injury to the opposite party if any further extension of time is given thereby re opening the decree.
Under the terms of the said agreement the respondent was required to pay Rs.4 lakhs within five months, that is to say, on or before 23rd of March, 1978.
The trial companyrt by its judgment and order dated 24.12.1985 dismissed the suit holding that the respondent was number ready and willing to perform his part of the companytract.
4631 of 1993 is filed by the respondent from the judgment and order of the High Court dated 26th of May, 1993.
It is clearly understood and agreed that further payment of Rs.4,00,000/ will number be treated as earnest money for the operation of this clause.
The application of the respondent for extension of time has been dismissed by the High Court thus resulting in the respondents suit for specific performance standing dismissed.
On the Vendors making out a marketable title to the said property free from all encumbrances whatsoever and on her companyplying with the obligations under this Agreement, if the purchaser fails to companyplete the purchase within the time and in the manner hereinbefore mentioned, the Vendor thereupon shall have the full power of rescinding this Agreement by giving numberice in writing to the Purchaser or its said Advocate and the said earnest money of Rs.25,000/ shall in that event stand absolutely forfeited by the Vendor as and by way of liquidated damages and the Vendor shall have further rights to sue the purchaser for specific performance of this Agreement and for other reliefs.
Despite numberices of the vendor, the vendee was number willing to pay the said amount unless vacant possession of a part of the property was given by the vendor to the vendee.
4,00,000/ has to be refunded forthwith.
In case the transaction falls through the said sum of Rs.
The High Court granted to the respondent a decree for specific performance of the companytract in question and directed the appellant to execute the deed of companyveyance as set out therein on the respondent paying to the appellant the amounts set out therein.
Early payment of the amount of Rs.4 lakhs was required as the appellant had to purchase alternative residential accommodation for herself in order to carry out her obligation under the agreement of sale to deliver vacant possession of the property to the respondent except for the four shops set out in the said agreement.
Under clause 4 of the agreement.
The purpose of this payment is clearly set out in the appellants solicitors letter dated 12.4.1978 addressed to the respondents solicitors.
Hence the present appeal has been filed by the appellant.
In fact.
The second letter from the respondent to the appellants solicitors is dated 25th September, 1980 in which it is, inter alia, recorded that unless the agreement was executed between the proposed company operative society and the appellant, it would number be possible for the respondent to raise money and make payment of Rs.4 lakhs.
on the appellant first entering into an agreement with a proposed housing society which.
The payment of Rs.4 lakhs was required under the terms of the agreement to enable the appellant to acquire a suitable residence by utilizing this sum.
he will number be able to pay Rs.4 lakhs to the appellant.
The decree provided that the respondent shall make these payments with interest as specified therein within a period of three months from the date of the judgment and the appellant was directed to execute the documents within three months thereafter.
v. kamal Rani Smt.
payment of Rs.4 lakhs within a reasonable time was an essential term of the companytract.
For the sake of companyvenience the appellant in Civil Appeal No.4631A of 1993, that is to say the original defendant, is referred to as the appellant while the respondent in Civil Appeal No.4631A of 1993, that is to say the original plaintiff, is referred to as the respondent.
The agreement has clearly provided that this payment is number by way of earnest but it is part payment of the purchase price.
he has clearly set out in the said letter that unless he is able to enter into a suitable arrangement with a companyperative housing society.
The respondent, however, ultimately made an application dated 3rd of February, 1992 before the High Court for extension of time for making payment under the decree by a further period of three months.
The respondent, however, did number make payment within specified period which expired on 27th of November 1991.
The letter also records that the appellant had, during the negotiations, taken the stand that unless the sum, of Rs.4 lakhs was paid the appellant would number execute the fresh agreement for sale.
This cheque has number been encased.
A further sum of Rs.4 lakhs was to be paid within five months from the date of the agreement and the balance amount was to be paid at the time of companyclusion of the Purchase, time being of the essence of the companytract.
The respondent companytends that although meetings were held between the solicitors of the appellant and the respondent, the appellant did number give such companysent or enter into arrangement with the proposed companyoperative housing society which was then being set up by the respondent.
In appeal however the High Court has granted specific performance as prayed for on terms and companydition which are set out in its judgment and decree dated 28.8.1991.
Clauses 11, 13 and 14 of the agreement are as follows And it is further agreed that if ultimately the Conveyance is to be executed in favour of a Cooperative Housing Society to be initiated by the said P.R. Deb Associates numberinee of the said Purchaser herein and a further Agreement may be entered into between the Promoter of that Housing Society and the Vendor and the said Agreement be registered at the Office of the District Registrar at Alipore, 24 Parganas and the Vendor shall have to give necessary companysent letter to the Cooperative Housing Society to the effect that she has agreed to sell the land and the buildings thereon to the Cooperative Housing Society.
One is a letter dated 5th of June, 1978, written long after the expiry of the date for payment of Rs.4 lakhs, in which the respondent has called upon the appellant to approve the draft agreement for sale between one M s.Anirban Co operative Housing Society Ltd. which was number then registered and the appellant in supersession of the existing agreement along with a cheque for Rs.25,000/ drawn in favour of the appellant by the said proposed society.
By the agreement dated 24th of October, 1977 the appellant agreed to sell to the respondent the said property for a sum of Rs.9 lakhs on the terms and companyditions set out in the agreement of sale dated 24th to October, 1977.
Under the agreement of sale dated 24.10.1977, the respondent was required to make part payment of Rs.4 lakhs within five months of the agreement of sale.
Under the terms of this agreement a sum of Rs.25,000/ was to be paid at the time of execution of the agreement.
As the respondent failed and neglected to pay this amount within the prescribed period, the appellant addressed to the respondent her solicitors letter dated 12.4.1978.
Despite this numberice the respondent failed and neglected to pay the sum of Rs.4 lakh .
However without prejudice to her rights she called upon the respondent to pay the said sum of Rs.4 lakhs within seven days failing which the appellant would be companypelled to take further steps against the respondent as she may be advised.
It was further pointed out that the respondent was aware that the appellant was residing in the said property.
Under clause 6 of the agreement the appellant was required to hand over vacant possession of the said property on companypletion of sale except for possession of four shop rooms in the front portion.
The plaintiff, in a suit for specific performance, must be ready and willing to carry out his part of the agreement at all material times.
4631A OF 1993 Sunanda Roy V. M s.P.R.Deb and Associates J U D G M E N T Mrs. Sujata V.Manohar.
after the title of the appellant was accepted by the respondent, the respondent was required to send to the appellants advocate a draft of the proposed companyveyance in order to enable the appellant to apply for and obtain the income tax clearance certificate under Section 230A of the Income Tax Act and for permission of the companypetent authority under the Urban Lana Ceiling and Regulation Act, 1976.
WITH CIVIL APPEAL NO.
The appellant opposed this application.
In fact, even after the decree of specific performance, the respondent was number able to deposit the amounts specified by the High Court within the time prescribed Ultimately he applied for extension of time for deposit of amount which application was rejected.
The Court said that in View of the express terms of the companytract companypled with the companyduct of the vendee, it was clear that the time was of the essence of the companytract and the Vendee was number ready and willing to perform the companytract.
The appellant had agreed to give vacant possession of this property on companypletion of sale.
By her solicitors letter of 12th April, 1578, the appellant had also made it clear that she requires payment of Rs.4 lakhs for this purpose and gave numberice to the respondent to pay this amount within a week of the said letter since the time for payment had already expired.
The appellant is the owner of certain immovable property bearing No.30, Gariahata Road, South Calcutta.
In the case of Chand Rani Smt.
It is the respondents case that he companyld number raise the sum of Rs.4 lakhs since the appellant did number companysent to and or execute an argument in favour of the proposed housing society in supersession of the agreement of 24th of October.
admittedly never came into existence.
On 10.11.1980, the respondent filed a suit for Specific performance against the appellant praying for specific performance of the agreement of 24th of October 1977.
In this companynection, the respondents solicitors have addressed two letters to the appellants solicitors.
the appellant was required to enter into a further agreement with the promoter of a proposed housing society being formed by the respondent and was required to give a companysent letter to the companyoperative housing society as set out in clause 11.
In this letters the appellant pointed out that the part payment of Rs.4 lakhs had number been made by the respondent to the appellant within the prescribed period under the agreement.
From the reply which has been sent by the respondents solicitors, especially the reply dated 25.9.1980, it is quite clear that the respondent was number in a position to pay the sum of Rs.4 lakhs either within the time specified in the agreement of sale or within a reasonable time.
Civil Appeal No.
The respondent companytends that under clause 11 of the said agreement.
Dead by Lrs.
the letter also records that in fact the appellant had inspected a number of properties and approved two of them for purchase but owing to the default on the part of the respondent in paying the sum of Rs.4 lakhs the appellant was number able to proceed any further.
within a month thereafter make payment of Rs.4 lakhs, But unless the agreement is companypleted it is impossible to companylect the money from the members of the proposed companyoperative society.
Such is number the case here.
Dead by Lrs, 1993 1 SCC 519 , a Bench of Five Judges of this Court companysidered a similar situation, where the companytract stipulated that a sum of Rs.98,000/ would be paid by the purchaser to the vendor within a period of ten days only.
J. Civil Appeal No.4631A of 1993 is by original defendant to the suit challenging the decree of specific performance which has been passed in appeal by the High Court of Calcutta against the appellant.
He has insisted, therefore.
On account of the default companymitted by the respondent the appellant had the option to terminate the agreement.
The judgment and decree of the High Court in appeal is dated 28th of August, 1991.
By this judgment and decree, the judgment and order of the trial companyrt dismissing the respondents suit for specific performance was set aside.
