The plaintiff respondent took an appeal to the High Court and it was there held that the failure on the part of the respondents to actually tender the amount of the companysideration does riot bar a suit for specific performance because after the repudiation of the companytract by the appellant, the tender would have been a useless formality.
The appeal was therefore allowed and the suit for specific performance decreed.
The trial companyrt dismissed the suit oil May 16, 1950, holding that the transaction on the basis of which the suit was brought was number a mortgage but was out and out sale with an agreement for repurchase and as the vendor had number paid the money punctually according to the terms of the companytract, the right to repurchase was lost and companyld number be specifically enforced , and the companyrt had numberpower to afford any relief against forfeiture of this breach.
Appeal from the judgment and decree dated May 26, 1954, of the Calcutta High Court in Appeal from Original Decree No.
On November 30, 1942, the solicitors for the appellant companypany wrote back saying that immediate arrangements should be made for giving inspection of the agreement of sale on which the respondents were relying as the appellant was unable to trace the companyy of the said agreement from its record.
10,001 the vendor shall at the companyt of the purchasers execute such companyveyance as may be necessary for companyveying and transferring its right, title and interest in the said property free from encumbrances, if any, created by it.
10,000.
The relevant clause of this agreement was the third clause which was as follows Clause 3.
Along with that letter a draft companyveyance was sent for approval but all this was subject to the result of a search as to the encumbrances, if any, created by the appellant.
The purchase shall be companypleted by the purchasers within two years, i.e., to say on or before the 10th day of February, 1943, time being the essence of the companytract.
On February 10, 1941, there was an agreement for reconveyance within a period up to February 10, 1943, for a sum of Rs.
1 filed a suit for specific performance and in the alternative for redemption on the footing that the transaction was in reality a mortgage.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
1 wrote a letter to the appellant stating that that respondent was ready and willing to have the purchase companypleted as early as possible on payment of Rs.
10,001.
205 of 1956.
To this the reply of the appellants solicitors dated December 18, 1942, was Our clients deny that there was any companycluded or valid agreement for sale with your client or with any other person in respect of the above premises.
Again on December 11, 1942, the respondents solicitor sent a letter stating My client is very eager to companyplete the purchase and the full companysideration money therefore is lying idle in his hands awaiting, the return of the relative draft companyveyance as approved by you on your clients behalf.
It is against this judgment and decree that the appellant has companye in appeal to this Court.
1 was the plaintiff, and the second respondent was a proforma defendant.
The facts of this case are these On February 4, 1941, the respondent sold the property in dispute to the appellant for a sum of Rs.
C. Chatterjee and R. B. Biswas, for respondents Nos.
If the purchasers shall on or before the 10th day of February, 1943, pay to the vendor a sum of Rs.
On November 26, 1942, the solicitor for respondent No.
On June 10, 1943, respondent No.
January 25.
127 of 1950.
1 a and 2.
N. Mukherjee, for the appellants.
10,001.
The appellant was the defendant in the suit out of which this appeal has arisen and respondent No.
The Judgment of the Court was delivered by KAPUR, J. This is an appeal against the judgment and decree of the High Court of Judicature at Calcutta.
