{"id":26482,"date":"1964-11-24T00:00:00","date_gmt":"1964-11-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/madamsetty-satyanarayana-vs-g-yellogi-rao-and-two-others-on-24-november-1964"},"modified":"2015-09-06T17:09:17","modified_gmt":"2015-09-06T11:39:17","slug":"madamsetty-satyanarayana-vs-g-yellogi-rao-and-two-others-on-24-november-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/madamsetty-satyanarayana-vs-g-yellogi-rao-and-two-others-on-24-november-1964","title":{"rendered":"Madamsetty Satyanarayana vs G. Yellogi Rao And Two Others on 24 November, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Madamsetty Satyanarayana vs G. Yellogi Rao And Two Others on 24 November, 1964<\/div>\n
Equivalent citations: 1965 AIR 1405, \t\t 1965 SCR (2) 221<\/div>\n
Author: K Subbarao<\/div>\n
Bench: Subbarao, K.<\/div>\n
           PETITIONER:\nMADAMSETTY SATYANARAYANA\n\n\tVs.\n\nRESPONDENT:\nG.   YELLOGI RAO AND TWO OTHERS\n\nDATE OF JUDGMENT:\n24\/11\/1964\n\nBENCH:\nSUBBARAO, K.\nBENCH:\nSUBBARAO, K.\nDAYAL, RAGHUBAR\nAYYANGAR, N. RAJAGOPALA\n\nCITATION:\n 1965 AIR 1405\t\t  1965 SCR  (2) 221\n CITATOR INFO :\n RF\t    1987 SC2328\t (13)\n\n\nACT:\nSpecific  Relief Act (1 of 1877), s. 22-Decree for  specific\nperformance --When can be refused.\n\n\n\nHEADNOTE:\nThe  plaintiff was the highest bidder at the public  auction\nfor the sale of the plots of the 1st defendant, but the\t 1st\ndefendant repudiated the contract.  So the plaintiff  issued\na notice to him asking him to take the earnest money  within\n24  hours and the balance within a week thereafter,  and  to\nexecute a sale deed.  The plaintiff however did not take any\nfurther\t effective  steps  to enforce  the  contract  for  7\nmonths, as he was mentally worried on account of the illness\nof  his wife and the demolition of one of his houses by\t the\nMunicipal  Corporation.\t  Then one day,\t while\tpassing\t the\nsuit-site he saw foundations being dug therein and within  a\nfew days thereafter filed the suit for specific\t performance\nof the contract, that is, about 7 1\/2 months after the\tdate\nof the auction.\t This 1st defendant contended that there was\nno  contract at all because, there was no final bid and\t the\nplaintiff's  bid was never accepted.  The trial\t court\theld\nthat there was a contract but that it was not a fit case for\ndecreeing  specific performance.  On appeal, the High  Court\ngave  the plaintiff a decree for specific performance.\t The\n1st  defendant appealed to the Supreme Court  and  contended\nthat   the   delay   disentitled  the\tplaintiff   to\t the\ndiscretionary relief.\nHELD  : Except for some delay, there were  no  circumstances\nwhich should induce a court to refuse, in its discretion, to\ngive the relief of specific performance. [231 H-232 A]\nWhile  mere  delay is not sufficient to empower a  Court  to\nrefuse\t the  relief  of  specific  performance,  proof\t  of\nabandonment  or\t waiver\t of  a right  is  not  necessary  to\ndisentitle the plaintiff to the relief.\t There may be  other\ncircumstances, which it is not possible or desirable to\t lay\ndown,  under  which  a court  can  exercise  its  discretion\nagainst\t the plaintiff.\t They must however be such that\t the\nrepresentation\tby,  on\t the  conduct  or  neglect  of,\t the\nplaintiff is directly responsible in inducing the  defendant\nto change his position to his prejudice or such as to  bring\nabout a situation, when it would be inequitable to give\t him\nsuch a relief. [230 A, C-D]\nCase law considered.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 669 of
\n1964.\n<\/p>\n
Appeal from the judgment and decree dated October 11,  1963,
\nof the Andhra Pradesh High Court in C.C.C. Appeal No. 12  of
\n1959.\n<\/p>\n
T.   Lashmayya, P. Shiv Shankar, O. C. Mathur, J. B. Dada-
\nchanji\t  and Ravinder Narain, for the appellant.
\nA.   V. Viswanatha Sastri, C.  Narasimhachar and Harbans
\nSingh for the respondent No. 1.\n<\/p>\n
222<\/span><\/p>\n
The Judgment of the Court was delivered by
\nSubba Rao, J. This appeal by certificate raises the question
\nwhether\t the High Court went wrong, in the circumstances  of
\nthe  case, to give a decree for specific performance  of  an
\nagreement to sell in favour of the plaintiff.
\nThe facts may be briefly stated : On August 23, 1954, at  10
\na.m.  defendants 1 and 2, through their Auction\t Agent,\t de-
\nfendant\t 3,  advertised\t and put their plots  Nos.  1  to  4
\nsituated in Narayanguda opposite to Deepak Mahal Theatre  to
\npublic\tauction.   In  regard  to plots Nos.  2\t and  3\t the
\nplaintiff  offered  the\t highest bid of\t Rs.  12,000\/-.\t  He
\nwanted to purchase the plots for the purpose of starting his
\nbusiness.   When  the plaintiff tendered one-fourth  of\t the
\nsale price as earnest money in accordance with the terms  of
\nthe auction, the defendants unlawfully refused to accept it.
\nOn  August  30, 1954, the plaintiff gave notice to  the\t 3rd
\ndefendant  and sent copies thereof to the  other  defendants
\ncalling\t upon them to obtain from him the one-fourth  amount
\nof the sale price as earnest money within 24 hours and\tpass
\na  receipt  therefor and accept the balance of\tthe  auction
\nprice  within a period of one week thereafter in  accordance
\nwith the condition of the auction sale and to execute a sale
\ndeed duly registered in his favour.  Defendants 1 and 2\t did
\nnot give any reply to the said notice.\tThe plaintiff  filed
\nthe  suit  in the Court of the 4th  Additional\tJudge,\tCity
\nCivil Court, Hyderabad, on April 18,1955, for directing\t the
\ndefendants,  inter  alia,  to execute the  saledeed  in\t his
\nfavour.\t   Defendants\t2   and\t  3   in   their    written-
\nstatementadmitted  that\t therewas an auction sale  and\tthat
\nplaintiff  was thehighest bidder; butthe 1st  defendant,  on
\nthe  other hand, deniedthat there was any final bid or\tthat
\nit was accepted.  He further stated that he gave up the idea
\nof selling the plots and that after obtaining the  necessary
\npermission from the Municipality he began to build shops  on
\nthe  said  plots.  The City Civil Judge held that  the\tsuit
\nplots  were  knocked down at the auction in  favour  of\t the
\nplaintiff  and\tthat the lst defendant refused to  take\t the
\nearnest\t money.\t He further held that though  the  plaintiff
\ngave notice as early as August 30, 1954, to the\t defendants,
\nhe  did not take any steps to enforce his contract and\tthat
\nthough he knew of the construction a couple of months before
\nhe  filed  the\tsuit,  he kept quiet  and  allowed  the\t 1st
\ndefendant  to complete his construction and,  therefore,  it
\nwas  not  a  fit case where he could,  in  exercise  of\t his
\ndiscretion, give a decree for specific performance;  instead
\nhe  awarded  to\t the plaintiff a sum of\t Rs.  500\/-  towards
\ndamages.  On appeal, a Division Bench of the Andhra  Pradesh
\nHigh Court, on
\n223<\/span>
\na consideration of the evidence, came to the conclusion that
\nthe  delay in filing the suit was due to the illness of\t the
\nplaintiff’s  wife and also on account of the  demolition  of
\none of his houses by the Municipal Corporation, that he came
\nto  know for the first time on April 13, 1955, that the\t 1st
\ndefendant was raising a structure on the suit plots and that
\nwithout\t any  loss of time within a few days  thereafter  he
\nfiled  the  suit.  The High Court also found  that  the\t 1st
\ndefendant did not act bona fide inasmuch as he chose to rush
\nheadlong  in raising the structure evidently to\t defeat\t the
\nclaims of the plaintiff.  On those findings, the High  Court
\nheld  that  the\t Trial\tCourt went  wrong  on  principle  in
\nexercising its discretion in favour of the defendants and in
\nrefusing  to  grant  a decree for  specific  performance  in
\nfavour of the plaintiff.  In the result, the High Court\t set
\naside  the decree of the Trial Court and gave a\t decree\t for
\nspecific  performance  in  favour of the  plaintiff  on\t his
\ndepositing a sum of Rs. 12,000\/- together with stamp  papers
\nand registration charges within a month from the date of the
\ndecree.\t  It may also be mentioned that the learned  counsel
\nfor the plaintiff made an offer that his client was  willing
\nto  pay\t a  sum\t of Rs. 14,750\/- towards  the  cost  of\t the
\nbuilding put up by defendants 1 and 2 on the suit plots\t and
\nthe Court recorded the same.  But, the High Court left it to
\nthe said defendants either to give vacant possession of\t the
\nplots or with the structure thereon accepting money for\t it,
\nas they chose.\tThe lst defendant has preferred this  appeal
\nby  certificate to this Court making the plaintiff  the\t 1st
\nrespondent, and defendants 2 and 3, respondents 2 and 3.
\nMr.  Lakshmaiah, learned counsel for the  appellant,  argued
\n(1) The appellant repudiated the contract on the next day of
\nthe  auction itself by refusing to take money from  the\t lst
\nrespondent;   the   1st\t respondent  did  not\taccept\t the
\nrepudiation,  but  elected  to keep the\t contract  alive  by
\nasking\tthe appellant to receive from him one-fourth of\t the
\namount as earnest money at any time within 24 hours  thereof
\nand  to obtain from him the entire balance within  one\tweek
\nthereafter; by so doing, he not only unilaterally varied the
\nterms of the contract but committed a breach thereof in\t not
\npaying the amount; having himself committed a breach of\t the
\ncontract, he could not specifically enforce it. (2) Time  is
\nthe  essence of the contract, as the object of\tpurchase  by
\nthe  1st respondent was to start a business; therefore,\t the
\nlst   respondent  should  have\tpursued\t his   remedy\twith
\npromptitude and diligence.  It was not enough to assert\t his
\nright by issuing a notice, but he should have taken steps to
\nenforce\t it; his inaction and indifference for 7 1\/2  months
\nwithout making any attempt to enforce his right would
\n224<\/span>
\ndisentitle  him\t to  the discretionary\trelief\tof  specific
\nperformance. (3) The reasons for the delay, namely, that the
\n1st respondent’s wife was ill or that one of his houses\t was
\ndemolished  by\tthe Municipal  Corporation,  were  obviously
\nuntenable excuses, for both the reasons existed even  before
\nthe auction was held.\n<\/p>\n
Mr.  A.\t Viswanatha  Sastri, learned  counsel  for  the\t 1st
\nrespondent,  on the other hand, contended as follows  :\t (1)
\nMere  delay in filing a suit for specific performance  could
\nnot possibly be a ground for exercising a discretion against
\na plaintiff, as the Limitation Act prescribed a period of  3
\nyears  for  filing  such a suit. (2) Under  the\t Indian\t law
\nrelief of specific performance could be refused only if\t the
\nplaintiff  abandons or waives his right under the  contract;
\nand  in the present case the appellant had  not\t established
\neither\tabandonment or waiver by the 1`st respondent of\t his
\nright under the contract, for indeed as soon as he saw\tthat
\nthe appellant had laid foundations for putting up structures
\non  the plots, he rushed without any delay to the court\t and
\nfiled the suit. (3) In the circumstances of the instant case
\nthere is no scope for holding that the appellant could\thave
\nhad any reasonable belief that the 1st respondent had waived
\nor abandoned his right, for it was the positive case of\t the
\nappellant that there was no concluded sale at all.
\nWe  cannot  allow the learned counsel for the  appellant  to
\nraise  before  us the first question, namely, that  the\t 1st
\nrespondent  did\t not  accept the repudiation  but  kept\t the
\ncontract  alive\t and committed a breach\t thereof,  with\t the
\nresult\tthat  he disqualified himself to file the  suit\t for
\nspecific  relief,  for the said plea was not raised  in\t the
\npleadings,  no\tissue was raised in respect thereof  and  no
\nargument-.  were addressed either in the Trial Court  or  in
\nthe High Court.\t As the question is a mixed question of fact
\nand law, we cannot permit the appellant to raise it for\t the
\nfirst time before us.\n<\/p>\n
At the outset we shall construe the relevant sections of the
\nSpecific  Relief  Act and the Limitation Act  unhampered  by
\njudicial decisions.\n<\/p>\n
\t      Specific\t Relief\t  Act:\tSection\t  22.\t The
\n\t      jurisdiction to decree specific performance is
\n\t      discretionary,  and the Court is not bound  to
\n\t      grant such relief merely because it is  lawful
\n\t      to  do so; but the discretion of the Court  is
\n\t      not arbitrary but sound and reasonable  guided
\n\t      by   judicial   principles  and\tcapable\t  of
\n\t      correction by a Court of appeal.\n<\/p>\n
225<\/span><\/p>\n
The following are cases in which the Court may properly
\nexercise a discretion not to decree specific performance :-\n<\/p>\n
\t      I.    Where the circumstances under which\t the
\n\t      contract\tis  made  are such as  to  give\t the
\n\t      plaintiff\t  an  unfair  advantage\t  over\t the
\n\t      defendant,  though there may be no,  fraud  or
\n\t      misrepresentation on the plaintiff’s part.
\n\t      Illustrations
\n\t      II.   Where  the performance of  the  contract
\n\t      would involve, some hardship on the
\n\t      defendant\t which he did not  foresee,  whereas
\n\t      its  non-performance  would  involve  no\tsuch
\n\t      hardship on the plaintiff.\n<\/p><\/blockquote>\n
\t      Illustrations
\n\t      The following is a case in which the Court may
\n\t      properly\texercise  a  discretion\t to   decree
\n\t      specific performance :-\n<\/p><\/blockquote>\n
\t      111.  Where the plaintiff has done substantial
\n\t      acts  or suffered losses in consequence  of  a
\n\t      contract capable of specificperformance.<\/p><\/blockquote>\n
\t      Illustrations
\nThe First Schedule to the Limitation Act
\n     Description of suit Period ofTime from which
\n\t  Limitation\t period begins
\n\t       to run
\n     Art. 113. For specific   Three yearsThe date fixed\t for
\nthe
\n     preformance\t performance, or, if
\n     of a contract.\t no such date is fixed,
\n\t       when the plaintiff
\n\t       has noticed that per-\n<\/p>\n
\t       formance is refused.\n<\/p>\n
Under  s. 22 of the Specific Relief Act, relief of  specific
\nperformance  is discretionary but not arbitrary:  discretion
\nmust  be exercised in accordance with sound  and  reasonable
\njudicial  principles.\tThe cams providing for\ta  guide  to
\ncourts\tto  exercise discretion one way or  other  are\tonly
\nillustrative;  they are not intended to be  exhaustive.\t  As
\nArt.  113  of the Limitation Act prescribes a  period  of  3
\nyears\tfrom   the  date  fixed\t thereunder   for   specific
\nperformance  of\t a  contract, it  follows  that\t mere  delay
\nwithout more extending up to the said period cannot possibly
\nbe a reason for a court to,
\n226<\/span>
\nexercise its discretion against giving a relief of  specific
\nperformance.   Nor  can the scope of the  discretion,  after
\nexcluding  the\tcases  mentioned in S. 22  of  the  Specific
\nRelief Act, be confined to waiver, abandonment or  estoppel.
\nIf  one\t of  these three circumstances\tis  established,  no
\nquestion  of discretion arises, for either there will be  no
\nsubsisting  right  or  there  will  be\ta  bar\tagainst\t its
\nassertion.   So,  there\t must be  some\tdiscretionary  field
\nunoccupied  by\tthe three cases, otherwise  the\t substantive
\nsection\t becomes otiose.  It is really difficult  to  define
\nthat field.  Diverse situations may arise which may induce a
\ncourt  not  to\texercise the discretion\t in  favour  of\t the
\nplaintiff.  It may better be left undefined except to  state
\nwhat  the section says, namely, discretion of the  court  is
\nnot  arbitrary, but sound and reasonable guided by  judicial
\nprinciples and capable of correction by a court of appeal.
\nMr.  Lakshmaiah cited a long catena of English decisions  to
\ndefine the scope of a court’s discretion.  Before  referring
\nto them, it is necessary to know the fundamental  difference
\nbetween the twosystems-English and Indian-qua the relief  of
\nspecific  performance.\t In England the relief\tof  specific
\nperformance  pertains to the domain of equity; in India,  to
\nthat  of  statutory law.  In England there is no  period  of
\nlimitation  for instituting a suit for the said relief\tand,
\ntherefore,   mere   delay-the  time   lag   depending\tupon
\ncircumstances-may itself be sufficient to refuse the relief;
\nbut, in India mere delay cannot be a ground for refusing the
\nsaid  relief,  for  the statute\t prescribes  the  period  of
\nlimitation.  If the suit is in time, delay is sanctioned  by
\nlaw;  if  it is beyond time, the suit will be  dismissed  as
\nbarred\tby  time  : in either case, no\tquestion  of  equity
\narises.\n<\/p>\n
With  this background let us look at the  English  textbooks
\nand  decisions\trelied upon by the learned counsel  for\t the
\nappellant.  In\tHalsbury’s Laws of England, Vol. 36,  at  p.
\n324, it is stated
\n\t      “Where  time is not originally of the  essence
\n\t      of  the contract, and has not been made so  by
\n\t      due notice, delay by a party in performing his
\n\t      part  of\tthe contract, or  in  commencing  or
\n\t      prosecuting the enforcement of his rights, may
\n\t      constitute such laches or acquiescence as will
\n\t      debar him from obtaining specific performance.
\n\t      The  extent  of delay which  has\tthis  effect
\n\t      varies with circumstances, but as a rule\tmust
\n\t      be capable of being construed as amounting  to
\n\t      an  abandonment  of  the\tcontract.   A\tmuch
\n\t      shorter period of delay, however, suffices
\n\t      if  it  is  delay in declaring  an  option  or
\n\t      exercising any other unilateral right;\n<\/p>\n
\t\t\t    227<\/span><\/p>\n
\t      and  if  the  other party\t has  already  given
\n\t      notice that he does not intend to perform\t the
\n\t      contract,\t  the  party  aggrieved\t must\ttake
\n\t      proceedings  promptly if he desires to  obtain
\n\t      specific performance.”\n<\/p>\n
In “Fry on Specific Performance”, 6th Edn., at p. 517, it is
\nsaid
\n\t      “Where  one  party to the contract  has  given
\n\t      notice  to the other that he will not  perform
\n\t      it,  acquiescence in this by the other  party,
\n\t      by  a comparatively brief delay  in  enforcing
\n\t      his right, will be a bar: so that in one\tcase
\n\t      two  years’ delay in filing a bill after\tsuch
\n\t      notice, in another case one year’s delay,\t and
\n\t      in a third (where the contract was for a lease
\n\t      of collieries) five months’ delay was held  to
\n\t      exclude the intervention of the Court.”\n<\/p>\n
Learned\t Counsel cited many English decisions in support  of
\nhis  argument that there shall be promptitude and  diligence
\nin  enforcing  a  claim for  specific  performance  after  a
\nrepudiation of the contract by the other party and that mere
\ncontinual claim without any active steps will not keep alive
\nthe  right which would otherwise be defeated by laches:\t see
\nClegg  v.  Edmondson(1),  Eads v.  Williams(2),\t Labmann  v.
\nMcArthur(3),  Watson v. Reid(4), and Emile Erlanger  v.\t The
\nNew  Sombrero Phosphate Company(5).  But as stated  earlier,
\nthe  English  principles based upon more delay can  have  no
\napplication  in India where the statute prescribes the\ttime
\nfor  enforcing\tthe  claim for\tspecific  performance.\t But
\nanother\t class\tof cases which dealt with  the\tdoctrine  of
\nlaches\thave  some bearing in the Indian  context.   In\t The
\nLindsay\t Petroleum Company v. Prosper Armstrong Hurd,  Abram
\nFarewell,  and John Kemp(6) Sir Barnes Peacock\tdefined\t the
\ndoctrine thus:\n<\/p>\n
\t      “Where it would be practically unjust to\tgive
\n\t      a remedy, either because the party has, by his
\n\t      conduct,\tdone  that  which  might  fairly  be
\n\t      regarded\tas equivalent to a waiver of it,  or
\n\t      where  by\t his  conduct and  neglect  he\thas,
\n\t      though  perhaps not waiving that\tremedy,\t yet
\n\t      put the other party in a situation in which it
\n\t      would  not be reasonable to place him  if\t the
\n\t      remedy  were  afterwards to  be  asserted,  in
\n\t      either of these cases, lapse of time and delay
\n\t      are most material.”\n<\/p><\/blockquote>\n
This  passage  indicates  that\teither\twaiver\tor   conduct
\nequivalent  to waiver along with delay may be a\t ground\t for
\nrefusing to give a
\n(1)  [1857] 114 R.R. 336.\n<\/p>\n
(3)  [1868] L.R. 3 Ch.\tA.C. 496.\n<\/p>\n
(5)  [1878] L.R. 3 A.C. 1218.\n<\/p>\n
(2)  [1854] 43 E.R. Chan. 671.\n<\/p>\n
(4)  [1830] 39 E.R. Chan. 91.\n<\/p>\n
(6) [1874] L.R. 5 P.C.A. 221, 239-240
\n228<\/span>
\ndecree for specific performance.  In Caesar Lamare v. Thomas
\nDixon(1), Lord Chelmsford said :\n<\/p>\n
\t      “The conduct of the party applying for  relief
\n\t      is    always   an\t  important   element\t for
\n\t      consideration.”\n<\/p><\/blockquote>\n
The  House  of Lords in Emile Erlanger v. The  New  Sombrero
\nPhosphate  Company(2)  approved the passage in\tThe  Lindsay
\nPetroleum Company v. Prosper Armstrong Hurd, Abram Farewell,
\nand John Kemp(3) which we have extracted earlier.
\nIt is clear from these decisions that the conduct of a party
\nwhich  puts the other party in a  disadvantageous  position,
\nthough\tit  does  not  amount  to  waiver,  may\t in  certain
\ncircumstances  preclude\t him  from obtaining  a\t decree\t for
\nspecific performance.\n<\/p>\n
Now we shall consider some of the Indian decisions cited  at
\nthe Bar.  A Division Bench of the Allahabad High Court\theld
\nin  Nawab  Begum v. A. H. Creet(4) that great delay  on\t the
\npart of the plaintiff in applying to the Court for  specific
\nperformance  of a contract of which he claimed\tthe  benefit
\nwas  of\t itself\t a sufficient reason for the  Court  in\t the
\nexercise of its discretion to refuse relief.  But it will be
\nseen from the facts of that case that, apart from the  delay
\nthe  conduct of the plaintiff was such that it\tinduced\t the
\nother  party  to change his position to\t his  detriment.   A
\nDivision  Bench of the Patna High Court in Rameshwar  Prasad
\nSahi  v.  M. Anandi Devi(-) held on the facts of  that\tcase
\nthat the delay in bringing the suit for specific performance
\nwas  always  fatal  to a suit, and that it  amounted  to  an
\nabandonment of the contract and waiver of his rights to\t sue
\nfor  specific performance.  If the learned Judges  meant  to
\nlay  down that mere delay would amount to abandonment  of  a
\nright,\twe  find  it  difficult to  agree  with\t them.\t The
\ndecision  of  the Calcutta High Court in  Gostho  Behari  v.
\nOmiyo Prasad(6) recognized that mere delay was sufficient to
\ndeny  the  relief of specific performance, but\tpointed\t out
\nthat  though  it  was not necessary to\testablish  that\t the
\nplaintiff had abandoned his right, the Court may, in view of
\nthe conduct of the plaintiff coupled with his delay that had
\nprejudiced  the\t defendant,  refuse to\tgive  the  equitable
\nrelief.\t In Chamarti Suryaprakasa–\n<\/p>\n
(1)  [1873] 6 H.L.C. 414,423.\n<\/p>\n
(3)  [1874] L.R. 5 P.C.A. 221,
\n(5)  [1960] I.L.R. 39 Pat. 79.\n<\/p>\n
(2)  [1878] L.R. 3 A.C. 1218.\n<\/p>\n
(4)  [1905] I.L.R. 27 All. 678.\n<\/p>\n
(6)  A.I.R. 1969 Cal. 361.\n<\/p>\n
229<\/span><\/p>\n
rayudu\tv. Arardhi Lakshminarasimha(1), a Division Bench  of
\nthe  Madras  High Court rightly pointed out  that  delay  by
\nitself\twas not a ground for refusing to give a decree in  a
\nsuit for specific performance.\tSadasiva Aiyar, J., observed
\n:\n<\/p>\n
\t      ”\t I think that it is an error of law to\thold
\n\t      that  more  delay\t amounts  to  a\t waiver\t  or
\n\t      abandonment   apart   from  other\t  facts\t  or
\n\t      circumstances  or\t conduct  of  the  plaintiff
\n\t      indicating that the delay was due to a  waiver
\n\t      or   abandonment\tof  the\t contract   on\t the
\n\t      plaintiff’s part.”\n<\/p><\/blockquote>\n
Seshagiri Aiyar, J., said much to the same effect, thus:\n<\/p>\n
\t      “There  is nothing in the Specific Relief\t Act
\n\t      which says that laches in bringing a suit will
\n\t      by  itself be a ground for  refusing  specific
\n\t      performance…………  …………   Having
\n\t      regard  to the fact that a special  period  of
\n\t      limitation has been fixed for bringing a\tsuit
\n\t      for   specific   performance,  I\t think\t the
\n\t      legislature has not intended that mere  laches
\n\t      should  be  one of the  grounds  for  refusing
\n\t      specific performance.”\n<\/p><\/blockquote>\n
We do not think, though the observations of Sadasiva  Aiyar,
\nI., are rather wide, that the learned Judges intended to lay
\ndown  that  unless there is a waiver or abandonment  by\t the
\nplaintiff of his rights to sue for specific performance,  he
\nshould\tbe  nonsuited, for if that was the law, as  we\thave
\npointed\t out earlier, the substantive part of s. 22  of\t the
\nSpecific Relief Act would become nugatory.  A Division Bench
\nof  the\t Calcutta High Court in Jadu Nath Gupta\t v.  Chandra
\nBhushan(2)  again  emphasized  the  fact  that\tthe  English
\ndoctrine  of delay and laches showing negligence in  seeking
\nrelief\tin  a Court of equity cannot be\t imported  into\t the
\nIndian law in view of Art. 1 1 3 of the Limitation Act.\t But
\nit  pointed out that where the conduct of the plaintiff\t was
\nsuch that it did not amount to abandonment but showed waiver
\nor acquiescence especially when inaction on his part induced
\nthe  defendant to change his position, the  plaintiff  ought
\nnot to be allowed any relief.  This case brings out not only
\nthe distinction between English and Indian law but also that
\nwaiver or abandonment of a right is not a pre-condition\t for
\nrefusing relief of specific performance.
\nThe  result of the aforesaid discussion of the case law\t may
\nbe  briefly  stated thus : While in England  mere  delay  or
\nlaches\tmay  be a ground for refusing to give  a  relief  of
\nspecific performance,
\n(1) [1914] 26 M.L.J. 518, 521, 523.\n<\/p>\n
(2) A.I.R. 1932 Cal. 493.\n<\/p>\n
230<\/span><\/p>\n
in India mere delay without such conduct on the part of\t the
\nplaintiff as would cause prejudice to the defendant does not
\nempower a court to refuse such a relief.  But as in  England
\nso  in India, proof of abandonment or waiver of a  right  is
\nnot a precondition necessary to disentitle the plaintiff  to
\nthe   said   relief,  for  if  abandonment  or\t waiver\t  is
\nestablished,  no question of discretion on the part  of\t the
\nCourt would arise.  We have used the expression “waiver”  in
\nits legally accepted sense, namely, “waiver is\tcontractual,
\nand may constitute a cause of action: it is an agreement  to
\nrelease or not to assert a right”: see Dawson’s Bank Ltd. v.
\nNippon\tMenkwa Kabushiki Kaisha(1).  It is not\tpossible  or
\ndesirable to lay down the circumstances under which a  Court
\ncan exercise its discretion against the plaintiff.  But they
\nmust  be such that the representation by or the\t conduct  or
\nneglect of the plaintiff is directly responsible in inducing
\nthe  defendant\tto change his position to his  prejudice  or
\nsuch  as  to  bring  about a  situation\t when  it  would  be
\ninequitable to give him such a relief.\n<\/p>\n
Bearing\t these\tprinciples in mind let us now  look  at\t the
\nfacts  of  the case.  Both the lower Courts found  that\t the
\nappellant  repudiated the contract even on the next  day  of
\nthe  auction,  i.e., August 24, 1954.\tThe  lst  respondent
\nissued a notice to the appellant on August 30, 1954,  asking
\nhim  to obtain from him one-fourth of the auction  price  as
\nearnest\t money at any time within 24 hours and\tthe  balance
\nwithin\ta period of one week thereafter and execute  a\tsale
\ndeed  in  his favour.  The appellant did not reply  to\tthis
\nnotice.\t  The  lst respondent in his evidence says  that  he
\ncould not take effective steps to enforce the contract for a
\nperiod of 7 months as his wife was ill and as the  Hyderabad
\nMunicipal Corporation had demolished one of his houses.\t The
\nHigh  Court accepted the explanation given by the  1st\tres-
\npondent\t for the delay in his taking steps in enforcing\t the
\ncontract.   In the affidavit filed by the lst respondent  in
\nthe  Trial  Court on October 18, 1955, he  stated  that\t his
\nhouse  had  been  demolished by\t the  Municipal\t Corporation
\nbefore a year and a half and his wife was also seriously ill
\nfor  the  “last\t two  years” and  that,\t therefore,  he\t was
\nworried.   From\t this statement it is argued that  both\t the
\ncircumstances  which are said to have been the\treasons\t for
\nthe  delay  were in existence even before the  auction\tand,
\ntherefore,  the\t High  Court went  wrong  in  accepting\t the
\nexplanation of the 1st respondent for the delay.  It is true
\nthat  the  1st\trespondent’s wife was ill  even\t before\t the
\nauction, but she
\n(1)  [1935] L.R. 62 I.A. 100, 108.\n<\/p>\n
\t     231<\/span><\/p>\n
continued  to  be ill even after the auction  and  there  is
\nclear  evidence\t that she was being treated in\ta  hospital.
\nThis  continual\t illness of the 1st respondent’s  wife\tmust
\nhave  unnerved\thim  and when the High\tCourt  accepted\t his
\nevidence we cannot say that it went wrong.  It is also\ttrue
\nthat the notice by the Municipal Corporation to demolish the
\nhouse  was given two months prior to the auction, but  there
\nis nothing on the record to show when the house was actually
\ndemolished.  Some time must have elapsed between the  notice
\nand  the actual demolition.  The only evidence in regard  to
\nthe  demolition of the house is that of the 1st\t respondent;
\nand  it is not suggested in the cross-examination  that\t the
\ndemolition  of\tthe house was before the  auction.   On\t the
\nuncontradicted evidence of the 1st respondent, we must hold,
\nagreeing with the High Court, that the lst respondent was in
\na   worried   state  of\t mind  because\tof  the\t  said\t two
\ncircumstances  which  might have been responsible,  to\tsome
\nextent,\t for his not taking immediate active  and  effective
\nsteps to enforce his right.  The most important circumstance
\nin the case is, when did the 1st respondent come to know  of
\nthe commencement of the building operations by the appellant
\non  the suit site ? The lst respondent says in his  evidence
\nthat  7 or 8 months after the auction he passed by the\tsuit
\nsite and saw foundations had been dug therein and a few days
\nthereafter  he filed the suit.\tThe appellant, on the  other
\nhand, says in his evidence that he started the\tconstruction
\nafter the disputed auction and that it was completed in 5 or
\n6  months.  Though he says in the cross-examination that  he
\napplied to the Municipality for permission to build, he\t did
\nnot  produce  either  a\t copy of  that\tapplication  or\t the
\nsanction issued to him by the Municipality.  He is not\teven
\nprepared  to  deny that he got the sanction  only  in  March
\n1955.  The Trial Court surmised without any evidence that at
\nthe time the lst respondent saw the foundations the stage of
\nthe construction indicated that the building operations must
\nhave  commenced two months earlier.  The High Court  rightly
\npointed\t out  that it was a pure surmise  and  accepted\t the
\nevidence of the 1st respondent that a few days after he\t saw
\nthe  foundations  being dug in the suit site  be  filed\t the
\nsuit.  But all these are beside the point, for it is not the
\ncase  of the appellant that because of the 1st\trespondent’s
\nconduct\t he  was induced to put up the building at  a  heavy
\ncost: his case throughout was that there was no contract  at
\nall.   If so, there was no question of his being induced  to
\nact  to\t his  detriment because of the conduct\tof  the\t 1st
\nrespondent.  Therefore, except for some delay, there are  no
\ncircumstances within the meaning of
\n232<\/span>
\nthe  aforesaid\tdecisions  which should induce\ta  Court  to
\nrefuse\tin  its\t discretion to give  a\trelief\tof  specific
\nperformance.  The High Court rightly held that it was a\t fit
\ncase where the plaintiff should have been given a relief  of
\nspecific performance.\n<\/p>\n
In the result, the appeal fails and is dismissed with costs.\n<\/p>\n
\t\t\t    Appeal dismissed.\n<\/p>\n
233<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Madamsetty Satyanarayana vs G. Yellogi Rao And Two Others on 24 November, 1964 Equivalent citations: 1965 AIR 1405, 1965 SCR (2) 221 Author: K Subbarao Bench: Subbarao, K. PETITIONER: MADAMSETTY SATYANARAYANA Vs. RESPONDENT: G. YELLOGI RAO AND TWO OTHERS DATE OF JUDGMENT: 24\/11\/1964 BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAYAL, RAGHUBAR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-26482","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMadamsetty Satyanarayana vs G. 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