The facts which have a material bearing on the first question have already been set out.
The finding with regard to readiness and willingness was linked up with the finding that the time was of the essence of the companytract and the respondent companyld number claim any relief on the ground of delay.
3006/ with interest at 6 per cent.
The High Court opined that time was number of the essence of the companytract, that delay on the part of the respondent in claiming companypletion of sale between April 30, 1959 and July 30, 1959 was number undue delay and there was neither abandonment of the companytract, number waiver, and that even as a defaulting party, as found by the Trial Court, the respondent was entitled to a decree for specific performance of the agreement of sale.
A 1 was executed by appellants 1 2 reciting that the land was agreed to be sold by appellants 1 2 to the respondent and that Rs.
and forfeited the deposit.
2,000/ .
Appellants 1 2 having failed to execute the sale deed the respondent instituted original suit No.
6000/ for a decree for specific performance of the agreement, alleging that he was at all material times ready and willing to perform his part of the companytract and to obtain the sale deed and it was only at the request of appellants 1 2 that execution of the sale deed was twice postponed and that appellants 1 2 had companymitted breach of the companytract.
2,000/ on April 4, 1959 and it was further recited that appellants 1 2 s hall settle the aforesaid sale within 2nd Chittiral, Vikhari 15th April 1959 in favour of the respondent that the amount shall be paid as per the particulars of the receipt of sale companysideration that even though appellants 1 2 are prepared to settle the sale accordingly, if the respondent raises any objection whatever to settle the sale, he shall lose the advance amount of Rs.
It is necessary to companysider the pleadings of the parties, the issues raised, the findings recorded by the Trial Court and the basis on which the appeal was pressed before the High Court by companynsel for the respondent.
1006/ in part payment of the price.
3000/ to the aforesaid advance amount of Rs.
They L.R. 1915 A.C. 386.
The High Court accordingly reversed the decree passed by the Trial Court, and decreed the claim of the respondent for specific performance.
Against the decree, the respondent appealed to the High Court of Judicature at Madras.
On August 3, 1959 the respondent deposited the balance payable by him under the agreement of sale in a Bank ,and by letter dated August 4, 1959 informed appellants 1 2 that time was number of the essence, and that he was ready and willing to carry out his part of the companytract, and the respondent called upon appellants 1 2 to execute a sale deed within three days of the receipt of the letter against payment of the balance of the price.
The agreement clearly incorporated a default clause imposing penalty upon the party failing to carry out the terms of the companytract.
II 5 5/2 3 to Palaniswami Nadar respondent in this appeal for Rs.
The Trial Judge also found that the story of the respondent that appellant No.
In the view of the Trial Court the respondent was undecided as to whether he should go through with the ,contract, and was apparently willing to allow the matter to drift.
L.R. 55 I.A. 360, 372.
Different reasons were given by the parties for number companypleting the sale by the date stipulated.
3006/ and pay in all, a sum of Rs.
On March 31, 1959 Palaniappa Pillai was companyvicted of the offence of murder and sentenced to imprisonment for life.
The transaction was number companypleted within April 30, 1959.
On July 31, 1959 the Appellants agreed to sell the land to P.K. Banarusami Naidu who will hereinafter be referred to as appellant No.
The finding is based on prima facie good evidence, and the inference raised by the Trial ,Court is reasonable.
Appeal by special leave from the judgment and order dated December 17, 1964 of the Madras High Court in Appeal Suit No.
The parties were, it appears, fully aware of what was required to be proved, and led evidence in support of their respective cases.
The Trial Judge apparently companyfused two independent issues one of default in performance of the companytract by the respondent and the other of readiness and willingness of the respondent to carry out his part of the companytract.
A receipt Ext.
also pleaded that appellants 1 2 were badly in need of money, but the respondent companymitted default in companypleting the sale as stipulated.
1 requested that companypletion of the sale be postponed because he had to attend a social function at Madurai and thereafter he had to go about making enquiries for a suitable match for his grand daughter, and that in the first week of July 1959 appellant No.
6006/ Rupees six thousand and six only to the respondent.
If the appellants relied on this finding, the High Court would have suitably dealt with it.
from the date of the decree till realisation against appellants 1 2.
On that day, the respondent deposited another sum of Rs.
The learned Trial Judge dismissed the suit holding that under the agreements dated April 4, 1959 and April 15, 1959 time was of the essence, that even if it be held otherwise the respondent was never ready and willing to perform his part of the companytract, that he had companymitted default in carrying out his part of the bargain, that delay on the part of the respondent to claim his rights under the agreement of sale had caused the interest of the third appellant to intervene and on that account the respondent was estopped from enforcing the agreement, and that delay was evidence of abandonment of the companytract or of waiver of the right to ,enforce the companytract.
No time was fixed for companypletion of the sale.
This finding was never challenged before the High Court and the High Court did number hold that the finding was incorrect.
No objection was raised in the Court of First Instance protesting against the trial of that plea without a specific issue thereon.
That would depend upon whether there was undue delay on the part of the appellant and whether respondents 1 and 2 have given him reasonable numberice that he must companyplete the agreement within a definite time.
In this appeal with special leave, two questions fall to be determined 1 whether under the agreement of sale, time was of the essence and 2 whether as alleged by appellants, 1, 2 3, the respondent was number ready and willing to perform his part of the companytract, and was on that account disentitled to a decree for specific performance.
As we are reversing the finding that the time was of the essence of the companytract and also that the respondent was.
At the trial the respondent asserted that on April 15, 1959 be was willing to take the sale deed from appellants 1 2, but on April 30, 1959 he was number ready to purchase the stamp paper or take the sale deed.
On August 3, 1959, he deposited the balance price of Rs.
On August 4, 1959, he called upon the appellants to perform the agreement, On March 21, 1960, the respondent instituted the present suit.
He also offered to purchase the stamp paper and to have the sale deed prepared for execution.
The Trial Court has therefore companye to the companyclusion, having re gard to the admission made by the respondent, his subsequent companyduct and other circumstances, that the respondent was number ready ,and willing to take the sale deed at any time.
1155/2 3 in village Periyakulam, District Ramnathapuram.
After April 30, 1959 also according to the Trial Judge the respondent took numbersteps to call upon appellants 1 2 to perform their part of the companytract, and did number purchase the stamp paper.
The companytract was entered on March 5, 1959.
Counsel for the respondent urged that the finding by the Trial Court on the issue of readiness and willingness was without evidence, vague and perverse and that the learned Judges of the High Court were justified in companypletely ignoring it and in granting a decree to the respondent for specific performance, numberwithstanding that finding.
On July 30,1959, appellants 1 2 addressed a letter to the respondent stating that the agreement of sale was subject to a specific undertaking that time was of the essence of the agreement and it was twice extended at the request of the respondent, and since the respondent had failed to carry out the agreement even by April 30, 1959, the agreement stood cancelled and the amount of Rs.
1 and the respondent went to V. Pillai P.W. 3 for preparation of the draft sale deed and that the first appellant requested for time to get the attestation of his son and daughters, was number true, and that the respondent was attempting to throw blame for the delay on appellants 1 2 and was trying to invent excuses to explain away his own unwillingness to take the sale deed.
The sale was number companypleted even on April 30,1959.
It was the case of the respondent that appellants 1 2 wanted to companysult a lawyer and to ascertain whether it was necessary to secure attestation by the first appellants son Palaniappa and his daughters because the property originally belonged to Ulagammal, wife of the first appellant.
On April 15, 1959, the time for companypletion of the sale was extended up to April 30,1959.
On that day, the respondent paid a deposit of Rs.
The High Court rejected both these companytentions.
375 of 1961.
1 in the proposed sale deed and that appellants 1 2 did number ask for postponement.
CIVIL, APPELLATE JURISDICTION Civil Appeal No.
On April 15 1959, another agreement was executed.
1,006/ .
They pleaded that the respondent was number ready and willing to get the sale deed executed and that he was deliberately putting off payment of the balance of the companysideration and was delaying performance of the agreement.
On April 4, 1959, the parties agreed that the sale should be companypleted before April 15, 1959.
Gomathinayagam Pillai and his son Chinnathambia hillai hereinafter companylectively referred to as appellants 1 2 were owners of a plot of land Survey No.
3006/ paid by the respondent stood forfeited.
The High Court companyld number have decreed the suit for specific per formance without finding that the respondent was at all material times ready and willing to perform the companytract.
The suit was resisted by appellants 1, 2 3.
30 of 1959 in the Court of the Subordinate Judge, Ramnathapuram, against appellants, 1, 2 3 and one Sethuramalingam Pillai who was implemented on the ground that he was a mortgagee of the property by deed executed on September 15, 1952 for Rs.
There was numberspecific issue on the question whether the respondent was ready and willing to perform the companytract.
It was recited in that writing that appellants 1 2 had agreed to sell on March 5, 1959 and had received Rs.
1006/ on that date, and Rs.
The respondent did number accept the cancellation.
3006/ Rupees Three thousand and six only and that, even though the respondent is prepared to settle the sale, if appellants 1 2 raise any objection whatever to settle the sale, they shall add a sum of Rs.
No specific issue was raised about the readiness and willingness of the respondent to perform his part of the companytract, but the second issue included trial of the plea raised by appellants, 1, 2 3.
15,106/ and received Rs.
In paragraphs of the plaint the respondent averred that he was always ready and willing to perform his part of the companytract and to have the sale deed executed, but at the request of appealing 1 2 exec ution of the sale deed was postponed.
The Trial Judge raised two issues which are material on this part of the case Whether the plaintiff is number entitled to the specific performance of the sale of the suit properties in his favour ?
Somewhat inconsistently he stated that on April 30, 1959 he met appellants 1 2 and called upon them to execute the sale deed and appellant 1 told him that he had urgent need to go for the case and that he would get possession only later and the sale deed would be executed after his return.
Counsel for the respondent then urged that the inference raised by the Trial Judge on the second issue, insofar as it relates to the readiness and willingness for the respondent to perform his part of the companytract, companyld number be raised on the findings recorded by him, The respondent had stated that he was on April 30, 1959 number ready to purchase the stamp paper or to take the sale deed.
13,906/ in a bank.
The Trial Judge accordingly rejected the ,claim of the respondent for specific performance, but awarded on a companycession made by appellants 1 2 a decree for recovery of Rs.
But the sale deed was number executed on or before April 15, 1959.
On April 4, 1959 appellants 1 2 received Rs.
1043 of 1965.
The trial Court company sidered the plea that the respondent was number ready and willing to perform his part of the companytract on the footing that time was number of the essence.
The Judgment Of WANCHOO and SHAH, JJ.
The effect of these admissions is this If the time was of the essence of the companytract, the respondent had defaulted on April 30, 1959.
2,000/ from the respondent and executed a writing stipulating that the sale deed will be executed on or before April 15, 1959.
I do protest against any Court, be it the mofussil Court or the High Court, recording a finding on such a vital question without raising a specific issue on the point.
The Trial Court thereafter summarised the evidence as to the companyduct of the respondent and appellants 1 2 and held that the respondent was never ready and willing to perform his part or the companytract at any time.
This was denied by appellants 1, 2 3.
K. Sen and R. Gopalakrishnan, for the respondent.
It was recited in the agreement As certain unforeseen circumstances have arisen to settle the sale on this day as has been fixed as per the Agreement executed on 4th April 1959 by us three Individuals, we have decided to companysult the Vakil so as to settle the sale within 30th April 1959 and to settle the sale and to bind ourselves as per the companyditions mentioned in the previous Agreement should whomsoever fail to finalise the sale.
It was the case of appellants 1 2 that they were full owners of the land agreed to be sold and that the children of the first appellant were number interested in the land and the respondent set up false excuses and neglected to take the sale deed as stipulated.
Shah, J. This appeal with special leave is filed against the judgment of the High Court of Judicature at Madras reversing the decree of the Subordinate Judge, Ramnathapuram in original suit No.
30 of 1959.
Counsel also relied upon the companycessions made on behalf of the respondent and recorded in the following passages in the judgment of the High Court Before us Mr. K. S. Desikan for the appellant made numberattempt to canvass the finding that his client had defaulted in the sense that on April 30, 1959, or before that date the appellant was number ready with the necessary funds to go through the sale The question then is, whether the appellant being, as found by the trial Court, which, as we said, is number companytested before us, a defaulting party, he is entitled to a decree for specific performance.
In March 1959, Palaniappa Pillai son of the first appellant was standing trial in a Criminal Court for the offence, of murder and the first appellant was in need of funds to defend him.
The Court referred to the admission made by the respondent that he was number willing to take the sale deed on April 30, 1959, and then companysidered the question whether the sale was number companypleted by April 30, 1959 on account of default on the part of the respondent or of appellants 1 2.
R. Gokhale and R. Ganapathy Iyer, for the appellants.
was delivered by SHAH, BACHAWAT, J. delivered a dissenting Opinion.
Incidentally, as the respondent had failed to perform the companytract by April 30, 1959 and had taken numbersteps till July 30, 1959, the trial Court found that he was never ready and willing to perform the companytract.
The appellants did number rely upon the finding of the trial Court that the respondent was number ready and willing to perform the companytract.
The trial Court framed six issues.
Counsel for the appellants laid stress upon an admission made by the respondent in his cross examination that on April 30, 1959, he was number ready to purchase the stamp paper or to take the sale deed.
On a companysideration of the evidence, the Trial Court came to the companyclusion that the respondent was number ready to companyplete the sale by April 30, 1959, since he wanted time for companysulting his lawyer as to the desirability of obtaining attestation of the children of appellant No.
But as the time was number of the essence of the companytract, the companytract remained alive.
disentitled to relief on the ground of delay, we must reverse the finding that the respondent was number ready and willing to perform the companytract.
On March 5, 1959 appellants 1 2 agreed verbally to sell S. No.
1006/ were received as advance amount.
On July 30, 1959, the appellants abruptly cancelled the companytract 1 1916 L.R. 43 I.A. 26.
