JUDGMENT
G. Bikshapathy, J.
1. Saying goes “Acts of over-confidence boomerang irretrievably.” This became a reality – A legal practitioner who became victim of this saying could not succeed in a suit for specific performance of Agreement of Sale.
2. Both the appeals can be decided by a common judgment as they are inter linked. -The decision in CCCA No. 81 of 1996 would govern the matter covered by CCCA No. 27 of 1996. Therefore, the former is decided in the first instance.
3. CCCA No. 81 of 1996 was filed by unsuccessful plaintiff assailing the judgment and decree of the learned III Additional Judge, City Civil Court, Secunderabad in OS No. 1783 of 1987, dated 22-1-1996. Plaintiff filed a suit for specific performance of the contract of Agreement of Sale dated 22-10-1975 and for consequential direction to Defendants to deliver constructive possession of the remaining ground floor by attorning the tenancy in favour of the plaintiff, with a further direction to the Defendants No. 1 and 2 to execute Sale Deed in respect of the leasehold interest of the Plot No. 13 bearing Municipal No. 5-3-33 admeasuring 2,649 sq fts. Situated at Zeera, Secunderabad.
4. It is the case of the plaintiff that the Defendants No. 1 and 2 are the owners of the leasehold interest in Plot No. 13 (New Municipal No. 5-3-33), Zeera, Secunderabad covered by lease No. 2515, dated 13-11-1965 granted by Secunderabad Cantonment Board. The property is a double storied building. Since, the Defendants were in need of money for business purpose, they agreed to transfer the leasehold rights in the said property in favour of plaintiff for consideration. Accordingly, Plaintiff has agreed to purchase the same for a sum of Rs. 65,000/- and he paid Rs. 11,000/- towards the earnest money. Agreement of Sale was concluded between the parties on 22-10-1975 stipulating various terms and conditions. It is also in the knowledge of the parties that the suit schedule premises was under equitable mortgage with the State Bank of India- Defendant No. 3. The terms of the agreement inter alia provided that Defendants No. 1 and 2 have to discharge the debt due to the 3rd Defendant and to obtain discharge of mortgage and thereafter convey the property in favour of the plaintiff. The Defendants have also to obtain sanction from the Estate Officer, Secunderabad Cantonment Board for transfer of leasehold interest. They are also required to obtain income tax certificate before the registration of the Sale Deed. It was agreed between the parties that the suit schedule property is free from encumbrances and finally it is stated that the entire transaction has to be completed on or before 31-7-1996. However, it is stated that the Defendants failed to discharge their obligation arising under the contract. Even though the Plaintiff reminded several times, the Defendants have not taken any interest, the Defendants have been requesting the plaintiff to pay the amounts to enable them to discharge the mortgage. Therefore, the plaintiff further advanced a sum of Rs. 2,000/-. However, according to the plaintiff the Defendants delivered the entire first floor portion and one room in the ground floor in the month of May, 1976 towards part performance of the Agreement of Sale. Subsequently, on 28-5-1976 further sum of Rs. 1500/- was paid. Similarly on 5-7-1976, 20-2-1977, 7-3-1978 and 24-3-1982 a sum of Rs. 5,00/-, Rs. 1,000/- Rs. 350/- and Rs. 2,800/- was paid. Though in all according to the Plaintiff a sum of Rs. 19,150/- was paid towards the earnest money and balance has to be paid at the time of registration of the Sale Deed. Plaintiff also submits that he made certain repairs as the portion occupied by him was in a dilapidated condition. Though, the plaintiff has been reminding the Defendants several times, no action was being taken and therefore, he sent a letter on 12-5-1980 calling upon the Defendants to discharge their obligations and a reply was issued on 28-5-1980 asking the plaintiff to meet for the personal discussion and accordingly, the matter was discussed. It is his case that the plaintiff had been expressing his readiness and willingness to perform his part of obligation under the agreement. Plaintiff has been working as Junior Counsel to Mr. M. Ram Mohan Rao and a meeting was arranged in this regard before Mr. M. Ram Mohan Rao and the Defendants agreed to discharge the mortgage debt in this regard. Since, no action was taken, a notice was sent on 20-2-1994, but the same was replied stating that expressing their inability to discharge the mortgage for various reasons and they could not be obtained the clearance certificate as the Executive Officer refused to give the clearance certificate and that the plaintiff was only a tenant for the portion occupied by him and his possession was not in pursuance of the part performance of the Agreement of Sale. It is also stated that Defendants No. 1 and 2 filed RC No. 104 of 1986 on the file of the Rent Controller, Secunderabad with false allegations and they also filed OS No. 961 of 1987 before the V Additional Judge, City Civil Court, Hyderabad on 22-4-1987 for declaration and possession. Plaintiff submits that the Defendants cannot obtain advantage of their violations. Therefore, after exchange of notices, the plaintiff filed a suit for specific performance of the Agreement of Sale.
5. Defendants No. 1 and 2 filed a common written statement. They have denied various averments made in the plaint. However, they admitted that leasehold rights in the suit property which was mortgaged with the State Bank of India was agreed to be sold to the plaintiff through Agreement of Sale dated 22-10-1975. Under the Agreement of Sale, registered sale deed has to be executed on or before 31-1-1976. It is also admitted that purchase price was fixed at Rs. 65,000/- and a sum of Rs. 11,000/- was paid was earnest money. The plaintiff was working as Junior Advocate with Mr. M. Ram Mohan Rao, even though Defendants were to discharge the mortgage debt, but, since the plaintiff was a Junior Advocate under Mr. M. Ram Mohan Rao, who was the Counsel for State Bank of India told that he will clear the debt, but he did not do so. It is also stated that they applied for grant of permission on 22-1-1996 and permission was refused on the ground that the property was under mortgage to the Bank. It is also stated that the plaintiff was never ready and willing to perfom his obligation. He failed to pay the balance sale consideration. He only paid Rs. 2,000/- on 9-3-1996 instead of balance sale consideration. While so, he was inducted into certain portion of the premises as a tenant on a monthly rent of Rs. 250/-. The further payment Rs. 1,500/-, Rs. 500/-. Rs. 1,000/- and Rs. 350/- made by the plaintiff were only towards the lease amounts and a sum of Rs. 2,800/- was paid on 24-3-1982 as the loan. Thus, the amounts paid subsequent to 9-3-1976 were only towards the payment of rent and also towards the loan and it was never towards the amount under the Agreement of Sale. Since the time fixed for payment of the amount lapsed on 31-1-1976, the delivery of the first floor and the room was given to the plaintiff in May, 1976, in pursuance of the understanding that he will pay the rent for the premises occupied by him. It is also stated that they have filed RCC against the plaintiff for eviction and also another suit for possession. The payment of paltry money subsequent to 31-1-1976 cannot be said to be a part payment as admittedly Rs. 50,000/- was due under the Agreement of Sale and therefore, it is un believable that the amount was paid towards the part payment. It is also averred that the suit was barred by limitation.
6. Additional written statement was filed to which a reply was also filed by the Defendants, which is nothing but reiterations of all the events and counter events. Basing on the averments made by the parties, the lower Court framed the following issues;
(1) Whether the plaint allegations are true and correct?
(2) Whether the plaintiff is entitled to a decree for specific performance of the suit Agreement of Sale as prayed for?
(3) Whether the plaintiff is entitled to a decree for directions to Defendants 1 and 2 to construct compound wall as prayed for?
(4) To what relief?
The following additional issues were framed:
(1) Whether the stipulation in the agreement is not deemed to have been waived of by accepting further advance as contended by Defendants?
(2) Whether the suit is barred by limitation?
7. During the course of trial, the Plaintiff was examined as PW-1 and Ex.A1 to A29 were marked. On behalf of the Defendants two witnesses were examined and Exs.B-1 to B-6 were marked and also Exs.X-1 and X-2 were marked.
8. The Trial Court has taken up the additional issue Nos. 1 and 2 namely point of limitation and the plea of waiver. The learned Trial Court after considering the evidence and documents on record came to the conclusion that the time was not the essence of the contract and that the Defendants had waived the stipulation with regard to the time. But, however, holding that the limitation commenced from the date of cancellation of the Agreement of Sale, the suit was not filed within time and therefore, it held that the suit was barred by limitation. Computing the limitation from Ex.A8 dated 20-2-1984 the suit was filed beyond three years. In respect of Issues No. 1 to 3, the lower Court found that the specific performance was not feasible in view of the impossibility of performance and accordingly, passed a judgment and decree dated 22-1-1996 dismissing the suit without costs. As against the said judgment and decree, the present appeal has been filed.
9. It is also to be noted in this regard that the Defendants No. 1 and 2 as already stated supra, have also filed OS No. 961 of 1987 seeking declaration that they continued to be the owners of the suit schedule property and for recovery of the possession. The documents which were pressed into service in the present suit were also the same for the other suit. Basing on these documents, the lower Court granted decree as prayed for and recovery of possession as prayed for and against that judgment and decree another CCCA No. 27 of 1996 has been filed. Thus, both the appeals came to be decided by this common judgment.
10. In fact it has been fairly conceded by the learned Senior Counsel for the Appellant that the Order in the CCCA No. 81 of 1996 which is filed against OS No. 1783 of 1987 would be deciding factor in the other appeal.
11. The issue that arises for consideration is whether the judgment and decree passed by the lower Court dismissing the suit of the plaintiff is sustainable in law.
12. The learned Senior Counsel appearing for the plaintiff, Mr. T. Veerabhadraiah submits that the Court below has not construed the evidence and the documents in a proper perspective and came to an erroneous conclusion that the suit was barred by limitation. Even on the question of readiness and willingness, the learned Counsel would submit that the plaintiff has always been ready and willing and relevant evidence has not been properly appreciated and therefore, judgment and decree is wholly erroneous and contrary to law. On the other hand, the learned Counsel for the Defendants submits that the lower Court has thoroughly considered the evidence adduced before the lower Court and came to a very appropriate and apt conclusion.
13. As can be seen the principal document which is the basic foundation of the plaintiff is Agreement of Sale dated 22-10-1975 (Ex.A1). The said agreement inter alia contained clauses infra:
“Clause 2 : The Vendors shall discharge the debt due to the State Bank of Hyderabad and obtain discharge of the mortgage from the said bank.
Clause 4 : The Vendors shall at their cost and expenses apply for and obtain sanction from the Estate Officer, Secunderabad for transferring the leasehold interest in the plot in favour of the vendee.
Clause 5 : The Vendors at their cost and expenses shall obtain necessary certificate from the Income-Tax authorities as may be required before the registration.
Clause 6 : The Vendee shall pay the balance consideration on or before 31st January, 1976 and obtain conveyance from the Vendors.”
14. It is also in evidence that a sum of Rs. 2,000/- was paid under Ex.A-2 on 9-2-1996 and subsequently amounts were paid as follows:
Rs. 1,500/- was paid on 28-5-1976 under Ex.A3.
Rs. 500/- was paid on 5-7-1976 under Ex.A4.
Rs. 1,000/- was paid on 20-2-1977 under Ex.A5 and
Rs. 350/- was paid on 7-3-1978 under Ex.A6.
15. It has to be considered whether the time is the essence of contract. Admittedly, the terms are fixed under Ex.A1 and the entire transaction has to be completed on or before 31-1-1976. But, however, by virtue of Ex.A2 where an endorsement was made on the reverse of Ex.A1 on 9-3-1996 receiving the further sum of Rs. 2,000/-. By this it has to be only concluded that the time stipulated in the agreement was not the essence of contract and that the Defendants waived stipulation of time and the agreement.
16. But the question that calls for consideration is whether the plaintiff has been able to discharge his obligations under the contract and whether the plaintiff exhibited his readiness and willingness to get the Sale Deed within reasonable time. After payment of Rs. 2,000/- what was remained to be paid is Rs. 52,000/-, a substantial amount was due. But, however, it was sought to be contended that about Rs. 3,350/- was paid subsequent to Ex.A2 right from 25-6-1976 to 7-3-1978. Even though it is the case of the Defendants that the said amount was paid towards the rent for the premises occupied by the plaintiff and the plaintiffs contention was that the said premises was handed over in part performance of the Agreement of Sale, no evidence was forthcoming from the plaintiffs side to establish that the possession was given in pursuance of the agreement of part performance. No documents whatsoever were filed by the plaintiff which would give an indication that such an understanding was arrived at between the parties. When an endorsement was obtained by the plaintiff on 9-3-1976 towards payment of further advance, there was no reason why the plaintiff has not taken such an endorsement when he made payments on four occasions from 28-5-1976 to 7-3-1978 and no explanation is forthcoming. It is unthinkable the plaintiff being an Advocate, who has been working with a Senior Counsel was ignorant of this basic fundamental of obtaining endorsement under a supplemental agreements. Even when the possession of part of the premises was handed over in pursuance of agreement of sale and alleged understanding between the parties, we fail to understand why the plaintiff failed to get the same endorsed on Ex.A1 or another agreement. Therefore, it is very much doubtful whether the payments made under Ex.A3 to 6 were towards the payment of advance money ‘or towards the rent. Moreover, it is pertinent to observe in this context that when a huge sum of Rs. 53,000/-was due as on 9.3.1976, payment of paltry sums as Rs. 1,500/-, Rs. 500/-, Rs. 1,000/- and Rs. 350/- cannot be said to be the part payments. The plaintiff sought to contend that he has been paying the amount as and when he was asked to pay, but that is not the criteria to be adopted. The plaintiff has to discharge his burden by expressing readiness and willingness to perform his obligation under the contract and there is no evidence forthcoming from the plaintiffs side that he was ready and willing to pay the balance sale consideration or a substantial portion thereof. He was only trying to postpone the day on the ground that the Defendants have not obtained discharge from the bank and permission from the Estate Officer was not obtained. Therefore, the impression gained by the Plaintiff that till such time, the defendants discharged their obligation, question of postponing his obligation would not come is wholly misconceived and it totally annihilates the very basis of his claim. It is now well settled that de hors the weakness or failures on the part of the defendants, the plaintiff has to establish his willingness and readiness. Even if the mortgage debt has not been discharged, it is always open for him to seek conditional decree for specific performance after establishing his readiness and willingness. Obviously, the plaintiff could not have the cake and eat it too. Even the lower Court has proceeded further granting concessions for the time consumed from Ex.A3 to A6 and taking into consideration the Ex.A7, notice got issued by the Defendants Ex.A13 dated 20-2-1984 observed that when the plaintiff had come to know of cancellation of the agreement, then atleast plaintiff ought to have taken the appropriate steps within the limitation period. Obviously, the plaintiff indulged in issuing notices, but did not file the suit within three years from the date of receipt of the notice Ex.A13. It was filed only after expiry of the limitation. Thus, the finding recorded by the lower Court that the limitation commenced on the date when a notice was given cancelling the agreement cannot be said to be illegal or contrary to law. Further, it is to be seen that when the last payment was made by the plaintiff himself under Ex.A6, dated 7-3-1978, he did not issue any notice or take any steps requiring the Defendants to discharge their obligations. He kept himself totally inactive and nearly two years after Ex.A6, he issued a notice Ex.A7, dated 12-5-1980. It was also sought to be contended that in 1982, further sum of Rs. 2,800/- was paid to the defendants to seek enlargement of limitation, but however, as can be seen from the receipt, itself and as the Trial Court has rightly concluded that the said amount was paid towards the loan and not towards further payment under Ex.A1. The inaction on the part of the plaintiff is visible from the documents filed by him itself. He could not have paid a small sums of money right form 1976 to 1978, when a huge amount is to be paid. Further from 7-3-1978 he did not take any steps and that he choose to give notice only after two years and after notices and counter notices issued by the plaintiff and the Defendants up to November, 1990, no further action was taken. It is only after a period of four years, again the notices were exchanged between the plaintiff and the Defendants. Thus, there is any amount of laches on the part of the plaintiff. It is well settled principle that laws aid and assist those who are vigilant not those who sleep over their rights. (Vigilanti bus, non dormienti bus, jura subveniunt). The relief of specific performance of agreement is an equitable relief. A person seeking such an equitable relief, has to approach the Court with clean hands and exhibit bona fide conduct. In the instant case, it is not as if the plaintiff was illiterate and innocent person. Therefore, the finding of the lower Court that the suit was barred by limitation and that the plaintiff failed to discharge the obligation arising under the contract cannot said to be illegal or contrary to law.
17. However, the learned senior Counsel for the Appellant relies on certain decisions, to sustain that the lower Court has not properly construed the questions of law. The same will be discussed hereinafter.
18. A Division Bench of this Court in Radha Bai v. Yasoda Bai, (DB), observed that in a suit for specific performance of the Agreement of Sale, consideration amount need not be deposited by the suitor while filing the suit and the plaintiff also need not show cash to sustain the plea of specific performance. Moreover, no petition was filed by the 1st Defendant-landlady seeking deposit of the balance sale consideration amount. The learned Counsel for the appellant also relied on the judgment of the Supreme Court reported in Mademsetty Satyanarayana v. G. Yelloji Rao, , wherein the Supreme Court held that mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower the Court to grant such a relief. The Supreme Court observed as follows:
“To sum up, while in England mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief. But, as in England so in India proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the plaintiff to the said relief, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. The expression “waiver” in its legally accepted sense, means that “waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right”. It is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But, they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief.”
19. The Supreme Court further held that in that case, except for some delay, there was no circumstance which would induce the Court to refuse in its discretion to give a relief of specific performance and therefore, held that it is a fit case where the plaintiff should have been given relief of specific performance.
20. The learned Counsel yet again relies on the judgment of the Supreme Court reported in Nuclear Power Corporation v. Gajra Singh, . The Supreme Court held in a suit for specific performance of the contract, the relief cannot be refused merely on the ground that the price of the property was raised during the tendency of the litigation.
21. The leaned Counsel referred to the decision of the Division Bench of this Court reported in Vegi Venkateswara Rao v. Vegi Venkatarama Rao @ Rajababu, 1997 (4) ALD 654 (DB). In the said case, the Division Bench observed that while seeking performance of reciprocal promise by the opposite party, the plaintiff has to specifically plead and prove that he has performed or has been ready and willing to perform the promise. But, in the instant case, the plaintiff has not been established that he has performed his obligations arising under the Agreement of Sale. It is to be noted that before seeking relief against the defendant to perform the obligations arising under the contract, the plaintiff has to necessarily plead and prove that he has performed his obligations and that he has been ready and willing to perform the promise. But, as already observed, the plaintiff never established that he was ready and willing to perfom his contact. On the other hand, the lower Court also found that the suit was barred by limitation.
22. The learned Counsel also relies on the decision of the learned Single Judge of this Court reported in Vemula Raghavaiah @ Raghavulugupta v. Jonnalagadda Venkatasubrahmanya Siddanti, 1955 (1) An.WR 609, wherein it was held that in matters of contracts of sale relating to immovable property, it was established both in England and in India that normally the time fixed by the parties under the contract should not be taken as being the essence of the contract, unless the parties expressly stipulate to that effect. But, however, if there was default or unreasonable delay by one party, it is open to the other party by a notice issued to the other to make time the essence of the contract and demand performance within a reasonable specified period. A party to a contract takes the position of refusing to receive the notice, cannot be legitimately complain that the time fixed was unreasonable and that it became inoperative. The learned Single Judge further held that the person suing for specific performance of a contract must show his continuous readiness and willingness to perform the contract from the date of the contract to the time of the hearing.
23. But, in the instant case, the plaintiff has not been established his readiness and willingness. On the other hand, as already observed by this Court there are any amount of laches on the part of the plaintiff and he was found to be not vigilant although he is a legal practitioner. It is true that a mere rising price is not treated as ground which justifies refusal of specific performance. But, in the instant case, that is not a ground on which the specific performance was refused. The Trail Court has categorically held that the suit was barred by time and that the plaintiff was never ready and willing to perform his contract.
24. The learned Counsel also tried to take the assistance from the judgment of the Supreme Court reported in Nirmala Anand v. Advent Corporation Private Limited, 2002 (4) ALD 3 (SC), Justice Doraiswamy Raju, has observed as follows :
“That it is too late to deny a claim for specific performance of an Agreement to sell an immovable property in existence or to be brought into existence according to the specification agreed to merely because the Vendor had to make applications or move the concerned and competent authorities to obtain permission/sanction or consent of such authorities to make the sale agreed to be made on effective and full-fledged one.”
The learned Judge further observed that the decisions clearly indicate that unless the competent authorities have been moved and the application for consent/permission/ sanction have been rejected once and for all and such rejection made finally became irresolutely binding and rendered impossible the performance of the contract resulting in frustration as envisaged under Section 56 of the Contract Act, the relief cannot be refused for the mere pointing out of some obstacles.
25. In the instant case it has been clearly established that an application was made by the Defendant to the competent authority to grant approval for transfer of the leasehold interest and the same was refused and it became final. Therefore, the decision would on the other hand, help the Defendant and not the plaintiff. Further, in the instant case, it is not the question of sale of a immovable property, but it is only sale of leasehold interest in the immovable property. Therefore, the prices rise in of the property during the pendente lite period is immaterial and it has no relevancy.
26. On the other hand, the learned Counsel for the respondent-Defendant refers to the decision of the Supreme Court reported in K.S. Vidyanandam v. Vairavan, , the Supreme Court observed that even though the time is not the essence of the contract of the sale in immovable properties and the suit can be filed within a period of three years provided under Article 54 of the Limitation Act, but it should be performed within a reasonable time, having regard to the terms of the contract prescribing the time limit. It observed that where the agreement stipulated that within a period of six months, the plaintiff had to purchase stamp papers, tender the balance amount of consideration and call upon the Defendants to execute the Sale Deed and deliver the possession of the property and requiring the Defendant to execute the Sale Deed, total inaction for two and half years after initial earnest money was paid by the plaintiff would be a circumstance which would weigh against the decree for grant of specific performance of the agreement in favour of the plaintiff. The Supreme Court observed thus:
“It has been consistently held by the Courts in India, following certain early English decision, that in the case of Agreement of Sale relating to immovable property, time is not the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Even where time is not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property. While exercising its discretion, the Court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable property). In the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades – particularly after 1973. Court cannot be oblivious to this reality. It is not possible to agree with the decision of the Madras High Court if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the Court by law. The rigor of the rule evolved by Courts that time is not of the essence of the contract in the case of immovable property-evolved in times when prices and values were stable and inflation was unknown-requires to be relaxed, if not modified, particularly in the case of urban immovable property. It is high time, the Courts do so.”
27. In the instant case, the time was found to be not essence of the contract, but yet, when the contract was cancelled by giving a specific notice, the plaintiff ought to have taken appropriate action within a period of three years. Admittedly, the suit was filed beyond three years and therefore, the proceedings attracted the wrath of Article 54 of Limitation Act. Under those circumstances, the lower Court was quite justified in holding that the suit was barred by limitation. Further, in the notice issued by the Defendants Ex.A13 dated 20-2-1984 it has clearly stated that the contract became unperformable and it became frustrated. The permission of the Cantonment Board was refused under Ex.B2 and the Defendants have not been able to get clearance from the Bank as can be seen from the following extract of notice Ex.A13:
“After receipt of the abovesaid letter dated 16-11-1980 and also your letter dated 12-5-1980, you met my clients and it was decided that may client should again approached the bank for clearance. But, in spite of my client’s efforts, the bank is not able to give clearance certificate and release the house from equitable mortgage. My client has explained his inability to you several times, after receipt of letter dated 16-11-1980 and even recently, my client has told you the same and requested you that the Agreement of Sale dated 22-10-1975 had resulted into a contract of frustration and it cannot be carried out as the conditions stated in the Agreement of Sale dated 22-10-1975 have become unperformable and cannot be carried out and as such, the contract has to be dissolved and the same was told by my client for which you agreed. My clients are prepared to pay Rs. 16,350/-received by them up to date after working out the equities for the occupation of the premises under your occupation from 1-1-1977. My client is prepared to work out the details and if any money is to be paid, my clients are ready to pay.”
Thus, the contract became impossible of performance by the Defendants. The law does not compel a man to do which he cannot possibly perform (Lex non cogit and impossibilia).
28. Thus, the judgments relied upon by the learned Counsel for the appellant do not assist him in any manner and that as already noticed, the findings recorded by the lower Court are quite legal and justified any they are based on evidence available on record. Thus, we do not find any merits in the appeal and accordingly the appeal CCCA No. 81 of 1996 is dismissed.
29. CCCA No. 27 of 1996 is filed against the judgment and decree of the lower Court in OS No. 961 of 1987. The suit filed by the Plaintiffs in OS No. 961 of 1987 for declaration that they are the owners of the property and recovery of possession. Since, we have already dismissed the appeal filed by the plaintiff whose case was rejected by the lower Court for grant of specific performance of the Agreement of Sale, we have to necessarily dismiss the appeal CCCA No. 27 of 1996 and accordingly, it is dismissed. We also do not find any grounds to allow the Cross Objections. Cross Objections are accordingly dismissed. The appellants are granted 3 months time to vacate the suit schedule premises.
30. No costs.