ORDER
Abdul Hadi, J.
1. The plaintiff is the appellant in this first appeal against the judgment and decree in O.S. No. 466 of 1981 on the file of the Subordinate Judge, Madurai. The said suit is for specific performance of Ex. A.1, sale agreement dated 15-12-1978 filed by the appellant against the defendants. The Court below has negatived the relief of specific performance, but has granted the return of advance amount paid, of Rs. 5,000/- with interest paid, under the said agreement; (total sale consideration there on was Rs. 7,60,000/- and the property agreed to be sold was a house in Madurai). Since the specific performance relief has been negatived by the Court below, this appeal has been filed by the plaintiff, claiming the said relief.
2. The plaint allegations are briefly as follows:– The defendants who owned the above said suit property agreed to sell it for Rs. 60,000/- to the plaintiff and accordingly executed the sale agreement dated 15-12-1978. As per the sale agreement, the defen-dants agreed to sell the same within six months free of all encumbrances and hand over vacant possession of the property at the lime of the sale. The defendants also received a sum of Rs. 5000/- on the same day as advance from the plaintiff. The plaintiff has been always ready to perform his part of the contract althrough. The plaintiff is sufficiently rich and has been always ready and willing to pay the balance of Rs. 55,000/- and to purchase the stamp papers and meet out the registration expenses. The plaintiff has got command to pay the sale price at any time. Though the abovesaid six months’ time was fixed, it was never agreed that time was of essence of the contract. The property agreed to be sold is in fact in occupation of a tenant. Whenever the plaintiff approached the defendants, the plaintiff expressed his willingness and asked the defendants to receive the balance and execute the sale deed. But, the defendants had been stating that the tenant had not vacated and had been asking for time and that as soon as the tenant vacated, they
Would execute the sale deed. Though as per the terms of the sale agreement, the defendants had agreed to hand over vacant posses-sion, the plaintiff is prepared to accept attornment from the tenant and is prepared to take eviction proceedings against him if necessary after the sale is completed. The plaintiff has sent registered notice to the defendants on 11-7-1981, calling upon them to execute the sale deed, but, though they have received the notice on 13-7-1981, had sent a reply-dated 27-7-1981, containing false allegations. The allegations in the said reply notice that time was agreed to be of essence of the contract, that the defendants were ready and willing to perform their part of the contract and that the plaintiff wanted time, are all falsehood. The further contentions in the reply notice that the plaintiff could not arrange for the sale deed in time, that the plaintiff stated that he would give up his claim for the refund of advance and that the plaintiff agreed to give up his claim for specific performance are all false. Similarly, the contention therein that the tenant is relative of the defendants and was prepared to vacate at any time is also false. Even now the suit building is in the occupation of the tenant.
3. The allegations in the written statement are briefly as follows:– The sale agreement stipulated that if the plaintiff failed to obtain the sale deed duly executed within the abovesaid period of six months, he should not demand back the deposit of Rs. 5,000/- and that if the defendants failed to execute the sale deed, they should repay the deposit of Rs. 5,000/- and another sum of Rs. 5,000/-The building is in the occupation of the tenant by name P.R. Subramanian, who is a close relation of the defendants and he is always prepared to vacate at any moment. However, as the plaintiff required six months’ time of arranging the sale price and as the defendants wanted to sell the suit house for the purpose of purchasing an other house property in Madras, six months’ specific time was stipulated only to enable the plaintiff to arrange the sale price and obtain the duly executed sale deed from the defendants. The sate price has been increasing day by day and the time stipulated in the sale agreement was
absolutely of the essence of the contract, and any delay would cause much loss to the defendants. The defendants had always been ready and willing to perform their part of the contract and handover vacant possession. But. the plaintiff could not arrange for the sale price and obtain the sale deed. Hence, the plaintiff expressed his inability and unwillingness, to complete the sale transaction and ;tlso agreed to forego the advance amounts as per the terms of the agreement. The defendants had also entered into a sale agreement on 4-1-1979 with one Janaki Animal at. Madras for the purpose of purchasing a house property at Madras for Rs. 82,500/- and also paid an advance of Rs. 5000/- on the same day, agreeing to, obtain the registered sale deed. The defendants wanted to invest the sale proceeds of the suit property in purchasing the house property at Madras as the defendants 1 and 2 are the permanent residents of Madras and for this reason, alone, the defendants proposed to sell the house. As the plaintiff failed to complete the sale transaction and committed gross breach of the sale agreement, the defendants could not complete their sale transaction at Madras with the said Janaki Ammal. The market price of the suit property has increased nearly three times and that has now prompted the plaintiff to come forward with the suit. The sum of Rs. 5,000/- paid by the plaintiff under the sale agreement was only as a security deposit for the proper performance of the contract by the plaintiff and the plaintiff has only to lose the amount if he commits breach. The allegation that the plaintiff is sufficiently rich and has been ready and willing to pay the balance sale price, etc, and that the plaintiff has got command to pay the sale price at any time, are all false. The defendants never represented to the plaintiff that as soon as the tenant vacated they would execute the sale deed. The allegation that the plaintiff is now ready to buy the suit building with the tenant in possession thereof and with attornment from the tenant in favour of the plaintiff, clearly show the speculative nature of the plaintiff due to the increase in the value of the property. The reply to the suit notice contained true allegations. As per the terms of the sale agreement,
the time for performance expired as early as 15-6-1979. But the plaintiff was keeping quite up to 11-7-1981 for issuing the suit notice and even thereafter the suit was filed only on 16- 10-1981. There is long delay and as per the very terms of the agreement, the plaintiff has to forego the return of the advance amount. Thus, it is evident that the plaintiff has abandoned his claim under the contract. The defendants incurred heavy damages due to the breach committed by the plaintiff and they could not purchase the coveted property at Madras, The plaintiff is. not entitled to either the relief of specific performance or the relief of return of advance amount.
4. The Court below framed the following
inssues;–
(1) Whether the plaintiff was ‘ready and willing to perform his part of the contract ?
(2) Whether time was of the essence of the contract ?
(3) Whether the plaintiff has committed breach of contract ?
(4) Whether the advance of Rs. 5000/-paid by the plaintiff pursuant to the contract has been forfeited ?
(5) Whether the plaintiff could claim the suit amount with interest ?
(6) To what relief is the plaintiff entitled ?
5. The plaintiff has examined himself as P.W. 1 and has marked Exs. A. 1 to A.35. On the side of the defendants, the 1st defendant was examined as D.W. 1 and the abovesaid tenant P. R. Subramanian was examined as D.W. 2 and D.W. 3 is the broker relating to the abovesaid defendant’s sale agreement for buying the abovesaid Madras property.
6. On issue No. (2) the Court held that
time is not of the essence of the contract. On issue No. (1) it held that the plaintiff was ready in view of the fact that he was sufficiently rich, but it held that he was not willing to perform his part of the contract. One reason for coming to the said conclusion is that only after long delay, Ex. A2 notice
dated 11-7-1981 was issued by the plaintiff, calling for performance of the contract by the defendants. In this regard, another reasoning of the Court below is that since now the plaintiff has come forward to purchase the suit property, even without defendants vacating the tenant, the plaintiff could have resorted to the same course much earlier and need not have delayed in demanding performance of the contract from the defendants. The third reasoning of the trial Court in this regard is, the plaintiff has purchased two other similar properties after the sale agreement under Ex. B. 1 sale deed dated 25-5-1979 for Rs. 35,000/- and Ex. A.22 sale deed dated 1-6-1981 for Rs.33,000/-. For all these reasons, the Court below held that not only the plaintiff was not willing to perform his part of the contract, but he has also abandoned the contract. Then, on the other issues, the Court below held that the abovesaid Rs. 5,000/- was only advance, and not earnest money and it should be returned to the plaintiff with interest. Accordingly the above-said decree was granted.
7. The specific performance relief having been negatived by the Court below the present appeal has been filed. The defendants have sold the property to the 4th respondent in this appeal and hence the said 4th respondent was impleaded in this appeal.
8. Learned Counsel for the appellant made the following submissions :– The three reasons given by the Court below for coming to the conclusion that the plaintiff was not willing to perform his part of the contract and the plaintiff has also abandoned the contract, are unacceptable. In this regard, the learned counsel took us to the relevant pleadings and evidence and also cited several decision, which we shall presently deal with.
9. For all the respondents, including the 4th respondent, same counsel appears in this appeal. He makes the following submissions : Though generally time is not of essence of the sale agreement of an immovable property, the inference to be drawn from the very terms of the contract is that it is of the essence. The terms also suggest that if the performance is not done within seven months stipulated
therein, the contract itself comes to an end. Other circumstances are also there for holding that time is of essence of the contract. Further, the plaintiff was neither ready nor willing to perform his part of the contract. Even assuming that the plaintiff was having properties, he was not having the necessary liquidity of funds and hence, he could not be considered that he was ready to perform the contract. The reasons given by the Court below for coming to the conclusion that the plaintiff was not willing to perform his part of the contract and for coming to the conclusion that the plaintiff has abandoned the contract are sound. Further, there is also no sufficient pleading regarding the abovesaid willingness and readiness continuosly, as per Section 16(c) of the Specific Relief Act, coupled with the relevant rules and (sic) in the Code of Civil Procedure. He also cited several decisions in support of his contentions.
10. We shall now consider the rival submissions in the light of the pleadings, evidence and decisions relied on. Regarding the first question whether for this sale agreement time was of the essence of the contract, we must first of all point out that it is settled law that the presumption in such agreements to sell immovable properties in that is not of the essence of the contract. The relevant observation in C. Gomathinayagam Pillai v. Palani-swami Nadar is as follows :–
“Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable; it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement
of a clause imposing penalty in case of default does not by itself evidence on intention to make time of the essence”.
One of us (Abdul Hadi, J.), has also followed the said Supreme Court decision in Y. A. Kader v. Muthu Lakshmi Ammal . In the present case, admittedly, there is no express stipulation in Ex. A. 1 sale agreement saying that time is of the essence of the contract. No doubt it says that within six months from the date of the agreement, that is, before 15-6-1979, the performance must be completed by executing and registering the sale deed and paying the balance price. Ex. A. 1 also stipulates that if within the abovesaid six months period, the plaintiff-purchaser fails to carry out his part of the contract, he cannot get the advance of Rs. 5,000/- paid and if the vendors-defendants fail to perform their part of the contract, within the said perioc, they must, apart from returning the abovesaid sum of Rs. 5000/- received from the plaintiff, also give another sum of Rs. 5,000/-. But, this stipulation would not make time of the essence of the contract, even according to the Surprcme Court decision. Learned Counsel for the respondent contends that since the suit agreement was entered into in order to buy a property at Madras, in suit agreement time must be considered of essence. In this connection Ex. B. 2 sale agreement for purchase of the abovesaid Madras property was relied on. But, this contention also has no merit since Ex. B. 2, which is dated 4-1-1979 stipulates that within three months thereof the sale should be completed. In other words, the expiry of the abovesaid three months’ period is even before the expiry of the abovesaid six months period stipulated in Ex. A. 1 agreement dated 15-12-1978. Further, even in Ex. A. 3 dated 27-7-1981, the reply to the suit notice Ex. A. 2, there is no such plea that in order to purchase the abovesaid Madras property, the suit agreement was entered into. Therefore, the contention of the said learned Counsel has no merit at all and the Court below also did not accept such contention put forward before it.
11. Learned Counsel for the respondents no doubt relied on Kamal Rani v. Chand
Rani . But, that decision turned very much on the peculiar facts therein. In the light of the facts therein, no doubt it was held that the stipulation, in the sale agreement that payment of a major portion of sale price, viz., Rs. 98,900/- within a stipulated time, was of the essence of the contract. The facts there were as follows ;–The vendor wanted the sale price to be paid within a week. But, at the request of the vendee, the period of ten days was stipulated in the agreement of sale and it was specifically provided in the sale agreement that the vendee must pay the same to the vendor “within a period of ten days only”. Further, it is also provided in another term of the sale agreement therein, with reference to the balance sale consideration of the sale price that if the vendee fails to pay the same and get the sale deed executed and registered within the specified period, the earnest money of Rs. 30,000/- shall stand forfeited to the vendor and the said agreement would be “deemed null and void”. There, the Court also points out that use of the word “only” as stated above was because the vender had to invest Rs. 1 lakh in a particular business and indeed wanted the money within one week. Taking these features and other features into consideration, the Court in that decision, came to the abovesaid conclusion.
11A. But, as already stated, the facts are different in the present case. No doubt, when the abovesaid Delhi case was subsequently taken up to Supreme Court in Chand Rani v. Kamal Rani the Supreme Court has no doubt approved the abovesaid reasoning of the Delhi High Court in relation to the use of the abovesaid term “only” as stated above. Even in that context, the observation of the Supreme Court is as follows :–
“It is a well accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place,
really and in substance it was intended that it
should be completed within a reasonable
time. An intention to make time the essence of
the contract must be expressed in unequivocal
language.”
We are unable to hold in the light of the terms of the present sale agreement or otherwise that the intention of the parties was to niakc time of the essence of the contract in the present case.
12. Further, no doubt, in this connection learned counsel for the respondents contends that if within the abovesaid six months, the plaintiff defaults to perform his part of the contract in paying the balance sale price, etc., the contract itself comes to an end as per the very terms of the contract. But, we are unable to agree with this contention, particularly because Ex. A.1 also provides that before registration of the sale deed, the defendants have to vacate the tenant occupying the suit property and handover the key of the vacant suit house to the plaintiff. Admittedly, in the present case, the tenant (D.W. 2) has not vacated even now. No doubt, the contention of contesting respondents is that D.W. 2 was only a close relation of the defendants and he was always ready to vacate the house whenever demanded. But, this later facts, viz., that he was ready to vacate whenever so demanded, is not borne out by evidence. D.W. 2, the tenant himself, though deposed that he
agreed to vacate the said house, has further
stated that he was in the look out for another
house for occupation for about two or three
months from January, 1979. He further adds
in his deposition that in Madurai, ordinarily
no house is vacant. No doubt, he says further that in March, he got another house, but,
there, ten months advance was demanded by the Landlord, but that advance was not given by him and hence he did not occupy that house. He also deposed that he could not get any other house and, therefore, he did not vacate the suit house and by then the mohth of July or August came. Then, D.W. 1, the 1st defendant told him not to vacate and thereafter there was no effort to vacate him and rent was also increased. All these clearly show
that the defendants also did not perform their part of the contract. Further, in the above
context, it cannot also be said that the contract has come to an end by the expiry of the abovesaid seven months. By no stretch of imagination, it can be said that time is of the essence of the contract and the conclusion reached by the Court below is perfectly correct.
13. Regarding the other contention that
the plaintiff was not ready and willing to peform his part of the contract and he has
abandoned the contract also, we are unable to agree with learned counsel for the respondents. In this regard, one of his submissions was that there was no sufficient pleading by the plaintiff regarding his readiness and willingness. No doubt Section 16(c) of the Specific Relief Act provides that performance of a contract, cannot be enforced in favour of a person, who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, which are to be performed by him, other than the terms, the performance of which has been prevented or waived by the defendant. Further Explanation (ii) therein also says that the plaitiff must aver performance of, or readiness and willingness to perform, the contract according to the true consideration. In the present case, following are the relevant pleadings in the plaint;–
“The plaintiff has been always ready and willing to perform his part of contract all through. The plaintiff is sufficiently rich and he has been always ready and willing to pay the balance of sale price of Rs. 55,000/-(Rupees fifty five thousand only) and to purchase stamp papers and to meet out the registration expenses. The plaintiff has got command to pay the sale price at any time”.
(Emphasis supplies)
In our view, this squarely satisfies the requirement stipulated in Section 16(c) of the Specific Relict Act. But, learned counsel for the respondents drew our attention to Form
No. 47 in Appendix A of Civil Procedure Code, which gives a model Format of plaint far seeking specific performance. There, in paragraph 3, the said form uses the following
expression;–
“The plaintiff has been and still is ready and willing to specifically to perform the agreement on his part, of which the defendant has had notice.”
The said learned Counsel emphasizes that this phraseology has not been adopted in the plaint. He emphasizes the words “and still” in the abovcsaid passage. Further, according to him, the plaitiff must also say how actually he is ready and willing, but that it is not stated in the plaint In this context, the said learned counsel also relies on Viswanathan v. Lak-shmi Ammal, (1993) 2 MLJ 560(DB). But, we see no merit in this argument of Learned Counsel. First of all, Order 6, Rule 3, C.P.C., while referring to the forms in Appendix A says, “the forms in Appendix A when applicable, and where they arc not applicable forms of the like character, as early as may be, shall be used for all pleadings”, Further, in view of the use of the words “always” and “althrough” in paragraph 6 of the plaint, the requirements under Section 16(c) of the Specific Relief Act, has been complied with, and there is no necessity to add also how actually the plaintiff was ready and willing. That is a matter of evidence only. (1993) 2 MLJ 560 (supra) is only a case where there was no averment at all in the plaint stating that the plaintiffs therein were always ready and willing to perform their part of the contract. No doubt, in that context this Court, after referring to Section 16(c) of the Specific Relief Act, incidentally also mentioned about Order 6, Rule 3, C.P.C. and Form No. 47 of Appendix A, particularly paragraph 3 therein. The said decision, in no way advances the case of the respondents,
14. Further in Nallaya Gounder v. Rama-swami Gounder (DB), this Court held that where in a plaint under Section 16(c), besides stating that the plaintiffs were ready and willing to perform their part of the contract, mention was made of the plaintiffs convening panchayat at thrice and defendants agreeing to execute the conveyance and later on setting the properties in favour of the third parties it was held that there was “sufficient compliance” of the
requirements of Forms 47 and 48 of Ap-pendix-A of the Code of Civil Procedure.
In Prag Datt v. Saraswati Devi , it has also been observed thus ;–
“The observations of the Supreme Court referred to above, make it clear that the requirement of Section 16(c) and of Form 47 of Appendix A to Civil P.C. are not to be interpreted narrowly and in a hypcrtechnical manner. It is the substance of the matter which is of importance. If from the averment made in the plaints and the surrounding circumstances, it is established in substance that the plaintiff was ready and willing to perform his part of the contract and had remained ready and willing to perform the same throughout, it would not be proper to non-suit him on a verbal omission here or there. It has to be remembered that Section 16(c) of Form 47 of Appedix A of Civil P.C. does not provide for booby trap of which an unscrupulous litigant should be allowed to take advantage ”
Further, in Bijai Bahadur v. Shri Shiv Kumar , which also dealt with a specific performance action, it has been observed that it is, enough if the relevant forms in Appendix A are substantially complied with. In the present case, also, undoubtedly that is substantial compliance of the above said Form No. 47 as well as Section 16(c).
15. Then, coming to the meaning of the abovesaid term “readiness” and the other term “willingness” we may also refer to Raj Rani Bhasin v. S. Kartar Singh , wherein it has been held, by readiness may be meant the capacity of the plaintiff to perform the contract, which includes his financial ability to pay the purchase price, but for determining his willingness to perform his part of the contract, his conduct has to be properly scrutinised.
16. Then, regarding evidence on the above said “readiness”, learned Counsel for the respondents submits that it is not enough that the plaintiff is having properties, but there must be proof that he was having liquidity of funds. In other words, he points
out that there is documentary evidence showing that the plaintiff was having any bank balance or liquid cash with him for payment of the balance sale price,. But, here also, we are unable to appreciate the above-said contention of learned counsel for respondents. Exs. A. 4 to A. 19 and Exs. A. 23 to A. 35 have been filed to show the resources available to the plaintiff. As the trial Court also has pointed out, he is the proprietor of Lalitha Papers Stores and is doing business for several lakhs and he is an income-tax assesses. That apart, it is also in evidence, as already indicated that he has purchased properties, one in 1979 for Rs. 35,000/- and another in 1981 for Rs. 30,000/- and for those purchases he has paid the sale consideration in cash. It is not necessary that he should necessarily have sufficient bank balance or cash balance at the relevant time for coming to the conclusion that he has been always ready to perform his part of the contract. It is enough if he could command credit in the market. Taking into account the abovesaid features, there can be no doubt that he could command such a credit all through the relevant period, and the decision of the Court below in this regard, is perfectly correct.
17. Then, regarding the abovesaid willingness also, we agree with the contention of learned counsel for the appellant that the three reasons given by the Court below for coming to the conclusion that the plaintiff was not having the above said willingness and that he has also abandoned the contract, are not acceptable. Simply because, two other properties have been purchased under Exs. B. 1 and A. 22, it cannot be said that the plaintiff is not wilting to buy the present suit property, pursuant to the suit agreement. In fact, when Ex. B. 1 was marked on the side of the defendants, it is the plaintiff who volunteered to mark Ex. A. 22 also to show that he was having greater abilities to purchase such properties, one for Rs. 35,000/- and another for Rs. 30,000/-. Further, it cannot be said that simply because the plaintiff has come forward to show some indulgence to the defendants, after certain lapse of time, in accepting to purchase the property even without the defendant vacating the tenant
therein, it cannot be said that he ought to have shown such indulgence much earlier or within the abovesaid six months period itself and ought to have so demanded performance pf the contract on the part of the defendants and filed the suit much earlier.
17A. Further, a mere delay in coming to Court, cannot negative the specific performance relief, provided the plaintiff has come to Court within the period of limitation prescribed under Article 54 of the Limitation Act (that is, three years from the date fixed for specific performance) vide — Arjuna Muda-liar v, Lakshmi Ammal (1948 (2) MLJ 271 : (AIR 1949 Mad 265).
17B. Learned Counsel for the respondent was emphasizing the conduct of the plaintiff in not having demanded specific performance by the writing any letter or sending any notice till Ex. A. 2 notice was issued. According to him this conduct would disentitle the plaintiff from claiming specific performance, But as already mentioned that by itself would not debar him from getting the relief. That apart, P.W. 1, the plaintiff has deposed
(Vernacular matter omitted–Ed.)
No doubt, as against this version 1st defendant, as D.W. 1 has deposed
(Vernacular matter omitted –Ed.)
But, taking into account the evidence given by D.W. 2, the tenant, which has been referred to in paragraph 12 above, there is more scope for believing the version of P.W. 1 rather than of D.W. 1. Further, the defendants also could have after vacating the tenant, demanded in writing from the plaintiff performance of his part. But, they have not chosen to do so.
17C. It has also been held in Satya-narayana v. Yelloji Rao that 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 of specific performance. There it has also been held that proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the
plaintiff, to the relief of specific performance, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. It has been further held therein that it is not possible or desirable to lay down the circumstances under which the 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. All these circumstances indicated for the Court not exercising its discretion in favour of the plaintiff, do not exist in the present case. The decision in Kantilal Shah v. Devarajulu Reddiar, (1977) 2 MLJ 484 relied on by the Court below has no application to the present case, since in that case, the suit was filed after five years, that is, beyond the period of limitation proscribed.
17D. Learned counsel for the respondents relies on the decision in Bhageran Rai v. Bhagwan Singh . But, that decision turned on its facts. No doubt that decision also dealt with a suit for specific performance. But, in that case, the sale agreement fruitioned into a sale deed, which was executed, but not registered, since the defendant vender was refusing to get it registered. The said sale deed itself was propounded as a contract of sale and the suit was laid for its specific performance nearly 21/2 years after the execution of the said sale deed and there is no satisfactory explanation for the plaitiffs inaction for hearing 2 1/2 years. In that context, the Court in that case pointed out the following observation of an earlier Bench decision of the same Patna High Court in Rameshwar Prasad Shai v. Anandi Devi ;–
“Where B execute a sale deed in favour of A but refuses to get it registered two remedies are open to A. It is open to him to apply for complusory registration of the document under Section 23, Registration Act and in case the prayer for registration is refused it is open to him to bring a suit under Section 77 of the Act. It is also open to A to have recourse
to the fuller and more comprehensive remedy provided for a suit for specific performance of contract for sale. These two remedies are independent and it is open to A to follow either of these courses for obtaining relief. But the failure of A to take any kind of action for a period of about twelve months is tantamount an abandonment of contract and waiver of his rights to sue for specific performance. Delay of this kind is always fatal to the plaintiff in a suit for specific per formance which is a discretionary relief.
In (supra) the delay was thus 12 months and in (supra) the delay was nearly 2 1/2 years. However, it must be noted that since the sale deed was executed in both the abovesaid cases, there was another remedy open to the plaintiff as soon as the defendant refused to register the sale deed. That remedy was for compulsory registration under Section 23 of the Registration Act. But, that was not resorted to by the plaintiff, but much later, the more comprehensive remedy of specific performance was sought for in the suit. In such a contact only it was held in both the abovesaid two decisions of Patna High Court that delay of the said kind was fatal to the suit for specific performance. The delay in the present case is not of that kind. Hence the said decision are distinguishable on facts and they have no application to the present case.
18. No doubt, learned Counsel for the respondents, while emphasizing that there must be continuous readiness and willingness, relied on P. G. Singh v. K. C. Chatterjee where it was held that such readiness and willingness must be till the date of hearing and on Smt. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi where it was held that such readiness and willingness must be till the date of filing of the suit for specific performance. But, in the light of the above features, it cannot be said that the plaintiff was not so ready and willing till the date of filing of the suit or till the date of hearing.
19. Simply because the plaintiff chose to issue Ex. A. 2 notice only on 11-7-1981 and did not make such demand earlier, within the
the abovesaid six months’ period which came to end by 15-6-1979 or immediately thereafter, it cannot be said that the plaintiff was not ready or willing to perform his part of the
contract.
20. On the same reasoning, it cannot also be said that there was abandonment of the contract by the plaintiff. Regarding this abandonment, no doubt there is plea in
paragraph 17 of the written statement thus :–
Further, there is absolutely no valid reason
for such an abnormal delay of nearly three
years. As per the very terms of the agreement
the plaintiff has to forego the return of the
advance amount. Thus it is evident that the
plaintiff has abandoned his claim under the
contract.”
Thus, in view of the abovesaid term “thus” used after mentioning about the abovesaid delay of nearly three years, it has to be taken that the alleged abandonment was to be inferred because of the said delay and not because of any other reason. In other words, the allegation that two other properties were purchased by the plaintiff (under Exs. B. 1 and A.22, as stated above) and the allegation that the tenant in the property did not vacate, are not to be taken as reasons for the alleged abandonment as per the written statement.
21. At any rate, it is very significant to note that the abovesaid allegation of abandonment does not at all find a place in Ex. A.3, reply notice dated 27-7-1981. In fact it is to be stated that what is stated in Ex. A.3, rather goes against the abovesaid allegation. Further D.W.1, gives a different reason for the alleged abandonment. What he says is :–
(Matter in vernacular omitted– Ed.)
So, in the evidence D.W. 1 states that the reason for the alleged abandonment is that he has purchased another house and he could not arrange for the required funds. Such a reason has not been stated in the written statement, as already noted. Further, if really, for any reason, the plaintiff abandoned the contract, the 1st defendant could have insisted the plaintiff to put it in writing. In fact, even in the written statement, it is not stated
when actually was the alleged abandonment. Further, the written statement does not say to whom actually the abovesaid abandonment was communicated. Therefore, the story of abandonment cannot be believed at all.
22. Further, we may also point out that in Netyam Venkataramanna v. Mahankali Narasimhan, , it has also been held following the earlier Division Bench judgment in M.A.H. Khan v. A. M. Khadri, , that from a long delay, without anything further, the abandonment of rights cannot be presumed. In (supra) the suit was filed on the last date of limitation and yet it was observed that there was no delay and that the plaintiff therein had not abandoned his rights for specific performance under the agreement.
23. In the view we have taken, there is absolutely no scope for any application of the decision in Kailash Chandra Bhoumik v. Bejoy Kanta Lahiri Chowdhury, (1919) 23 CWN 199 : (AIR 1919 Cal 837), relied on by learned Counsel for the respondent since it had also turned on its own facts, which are different from the present one.
24. Then regarding the question whether the abovesaid sum of Rs. 5,000/- paid on the date of the sale agreement, it is clear to us that it is only advance, and not earnest money. In fact in the view we have taken, there is no necessity to deal with the said question at all.
25. Insofar as the 4th respondent, the subsequent purchaser is concerned, the law is clear and well settled that his purchase will be affected by lis pendens, even though the said sale to him was after the dismissal of the present suit. It has been held in several decisions including Settappa Goundan v. Muthla, ILR (1908) 31 Mad 268, that even after the dismissal of the suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed.
26. In the result, the judgment and decree of the trial Court are set aside, the suit is decreed for specific performance as prayed for and the appeal is allowed with cost’s throughout. Time for payment of balance of
sale consideration is, one month. Time for executing the sale deed is, one month thereafter.
27. Appeal allowed.
