Dharam Singh Suraiya vs Satyendra Lal Dutt

Arun K. Mukherjea, J.—This is an appeal from a judgment and decree dated April 8, 1965, by which the Plaintiff-Appellant''s suit for specific performance of an agreement of sale in respect of a property in Calcutta was dismissed by the learned trial Judge.

The facts out of which the appeal arises are as follows: On September 29, 1960, the Defendant through his Solicitor, S.K. Guha, offered to sell to the Plaintiff premises No. 63, Colutolla Street, Calcutta, free from all encumbrances at the price of Rs. 95,000. The offer was to remain open till October 4, 1960. On October 1, 1960, the Plaintiff wrote to S.K. Guha offering to purchase the premises on certain terms and conditions contained in that letter. One of the terms included in that letter was that the transaction will be completed within three months from the date of delivery of the title deeds relating to the property. The Plaintiff sent a cheque for Rs. 5,000. On October 3, 1960, the Plaintiff''s offer contained in the letter of October 1, 1960, was accepted by the Defendant who promised to send the title deeds to the Plaintiff''s Solicitors on November 2, 1960. Under cover of a letter dated November 2, 1960, S.K. Guha, the Solicitor of the Defendant wrote to Messrs. Mukherjee and Biswas who were the Plaintiff''s Solicitors about the agreement between the parties and sent four documents along with that letter. The four documents that were included were:

(1) One brief in Suit No. 766 of 1958;

(2) One certified copy decree in Suit No. 1086 of 1942 and Commissioner''s Report;

(3) One copy draft decree in Suit No. 766 of 1958;

(4) One certified copy Plan.

The Defendant''s Solicitor S.K. Guha said that the title of the property would appear from the statements in the plaint in Suit No. 766 of 1958 and from the documents disclosed therein. S.K. Guha offered to explain to Mr. Biswas of Messrs. Mukherjee and Biswas the Defendant''s title further if Mr. Biswas so desired. On November 4, 1960, Messrs. Mukherjee and Biswas sent an ''accountable receipt'' for the four documents which had been sent to them and told S.K. Guha that they had not received any formal instructions from D.S. Suraiya and that they had written to the Plaintiff for such formal instructions-On December 13, 1960, Messrs. Mukherjee and Biswas wrote to S.K. Guha and told him that they had perused the papers relating to the title of premises No. 37, Colutolla Street, which had been sent to them on November 3, 1960. They pointed out, however, that in the report filed by the Commissioner of Partition it had been directed that the title deeds of the property included in Lot A of Schedule 2 were to remain in the custody and possession of the Plaintiff in the said suit, i.e., Satyendra Lal Dutt (who is the Defendant in the instant suit). Since premises No. 37, Colutolla Street, was comprised in Item 5 of Lot A of Schedule 2, the title deeds according to the Commissioner''s report ought to be in the possession of Satyendra Lal Dutt Messrs. Mukherjee and Biswas asked S.K. Guha to send these title deeds against the ''accountable receipt'' of Messrs. Mukherjee and Biswas. As there was no reply sent by S.K. Guha to this letter on December 23, 1960, Messrs. Mukherjee and Biswas sent a reminder. On December 27, 1960 S.K. Guha wrote to Messrs. Mukherjee and Biswas to say that no original documents of title came into the Defendant''s possession. Guha further stated that the parties to the partition had none of those documents, a fact which was affirmed by an affidavit in the partition proceedings. In this connection Guha asked Messrs. Mukherjee and Biswas to refer to Mr. T.K. Ghose, Engineer, who had been appointed Commissioner of Partition in the partition suit No. 1086 of 1942. S.K. Guha called upon the Plaintiff''s Solicitors to send to him the requisitions on title for answer. Incidentally, he regretted the delay in his reply. On December 28, 1960, Messrs. Mukherjee and Biswas referred S.K. Guha to certain provisions in the Commissioner''s report a certified copy of which they said had been procured by them in the mean time. Verbatim copy of an extract of the Commissioner''s report was set out in the letter. The relevant portion reads as follows:

I DO HEREBY CERTIFY AND REPORT that upon enquiry I have been able to get in possession of the document of title of the joint estate fully described in Schedule II parts ''A'' and ''B'' hereunder.

I DO HEREBY DIRECT that the title deeds of the properties included in Lot ''A'' fully described in Schedule II hereunder shall remain in the custody and possession of Satyendra Lal Dutt and of properties included in Lot ''B'' shall remain with me until I make the sub-partition between Nripendra Lal Dutt and his assigns.

Messrs. Mukherjee and Biswas stated that premises No. 37, Colutolla Street, was comprised in Item No. 5 of Lot A in Schedule II and all the premises comprised in Lot A in Schedule II had been allotted to the present Defendant as and for his half share in the joint estate. The Commissioner''s report contained a list of the title deeds of the properties in Lot A. The whole list is set out in the letter of Messrs. Mukherjee and Biswas who requested S.K. Guha to reconsider the position and let them have his final views and offered to furnish S.K. Guha with the certified copy of the Commissioner''s report for his perusal. Messrs. Mukherjee and Biswas also requested S.K. Guha to forward them a copy of the affidavit referred to in his earlier letter of December 27, 1960. S.K. Guha did not send a reply to this letter and on January 11, 1961, Messrs. Mukherjee and Biswas asked for a reply without delay. Even after this reminder S.K. Guha did not apparently send any reply before April 17, 1961, i.e. to say, practically after 3 months 20 days from the date of the original letter of the Plaintiff''s Solicitor. In that letter S.K. Guha tells Messrs. Mukherjee and Biswas that the client had been able to trace the first four documents mentioned in the letter dated December 28, 1960, of Messrs. Mukherjee and Biswas. He stated, however, that the last two documents mentioned in the letter were never delivered to the present Defendant. S.K. Guha further stated that according to an affidavit of Khagendra Lal Saha, a party to the suit, Satyendra Lal Dutt v. Nripendra Lal Dutt filed before the Commissioner of Partition, these two documents were with the liquidator of Nath Bank Ltd. (in liquidation). S.K. Guha asked Messrs. Mukherjee and Biswas to inspect the original affidavit which was with Mr. T.K. Ghose and said that on a perusal of that affidavit the Plaintiff''s Solicitors would be satisfied that the two documents concerned were never delivered to the Plaintiff. The other four documents were, however, enclosed with that letter. On April 19, 1961, Messrs. Mukherjee and Biswas while sending to S.K. Guha their accountable receipt for the documents sent on April 17, asked S.K. Guha to send them a copy of the affidavit of Khagendra Lal Saha and said that if necessary they would write to him again for inspection of the original document. They also enquired as to how and in what proceedings the two documents referred to in their letter of December 28 (i.e. to say the registered conveyance dated February 23, 1942, of premises No. 37, Colutolla Street, Calcutta, from Nripendra Lal Dutt to Khagendra Lal Saha and the registered conveyance dated February 23. 1942, of the premises No. 63/1 and 64, Colutolla Street, Calcutta, from Nripendra Lal Dutt to Khagendra Lal Saha) came into the possession of the liquidator of Nath Bank Ltd. (in liquidation) and also in what right were these documents held by the liquidator. On May 11, 1961, S.K. Guha sent a copy of the affidavit of Khagendra Lal Saha to Messrs. Mukherjee and Biswas. Thereafter apparently both sides lay low until on July 19, 1961, Messrs. Mukherjee and Biswas wrote to S.K. Guha telling him that the matter was pending for a long time and it was desirable that some finality should be arrived at. They also stated that their client, the Plaintiff in this case, had requested them to arrange for an interview with S.K. Guha in which both the respective clients could be present. Messrs. Mukherjee and Biswas asked for an appointment so that their client could be present By a letter of July 20, 1961, S.K. Guha asked Mr. Biswas of Messrs. Mukherjee and Biswas to fix a date convenient to him. Messrs. Mukherjee and Biswas on July 24, 1961, wrote back appointing July 27, 1961, for a conference. After this conference there is a long interval during which there was no correspondence between the parties at all. We have no clear account of actually what transpired at the conference. It appears, however, that on February 13, 1962, S.K. Guha wrote to Messrs. Mukherjee and Biswas to return to him in course of the day the certified copy of the decree dated March 2, 1954 and the certified copy of the Commissioner''s report in Suit No. 1086 of 1942 Satyendra Lal Dutt v. Nripendra Lal Dutt. This was Item No. 2 of the four documents sent by S.K. Guha to Messrs. Mukherjee and Biswas on the latter''s accountable receipt dated November 3, 1960. S.K. Guha said that he wanted these documents for obtaining permit for cement for repair of premises No. 62, Colutolla Street, which was also covered by the same document. This letter apparently reached Messrs. Mukherjee and Biswas on the same day at about 545 P.M. On March 24, 1962, S.K. Guha wrote a letter to Messrs. Mukherjee and Biswas in which he repeats that there was a mis-statement in the Commissioner''s report that two documents were with the Defendant. S.K. Guha suggested that the incorrectness of that statement could be verified from the affidavit of Khagendra Lal Saha filed before the Commissioner of Partition. The Commissioner of Partition himself was prepared to make a fresh statement to that effect. S.K. Guha further says that he had tried to obtain a statement from the liquidator of Nath Bank Ltd. to the effect that the documents were lying with him but the liquidator apparently was not prepared to give such a statement. S.K. Guha says that he had also consulted his counsel who could not, however, give any suggestion as to how the mis-statement in the Commissioner''s report could be rectified and S.K. Guha invited Mr. Biswas of Messrs. Mukherjee and Biswas to advise him as to how that could be done. S.K. Guha requested Messrs. Mukherjee and Biswas to be satisfied with the position of the title deeds and to proceed with the completion of the transaction. S.K. Guha further states in that letter that the Plaintiff had seen S.K. Guha in that connection and that S.K. Guha had explained to the Plaintiff "the whole position". S.K. Guha requested Messrs. Mukherjee and Biswas to ignore the obvious mis-statement in the Commissioner''s report and to expedite the completion of the transaction. On April 18, 1962, Messrs. Mukherjee and Biswas in reply to S.K. Guha''s letter of March 24, 1962, asked S.K. Guha to send them a copy of the affidavit of Khagendra Lal Saha referred to in his letter under reference and also the draft of the statement which according to S.K. Guha the Commissioner of Partition was prepared to make. In reply, on June 11, 1962, S.K. Guha sent a copy of the affidavit of Khagendra Lal Saha filed before the Commissioner of Partition. The copy was counter-signed by T.K. Ghose who had the original affidavit in his possession. On August 6, 1962, Messrs. Mukherjee and Biswas wrote to S.K. Guha with reference to an interview which S.K. Guha had with Messrs. Mukherjee and Biswas on the preceding Thursday. Messrs. Mukherjee and Biswas states in that letter that they had seen the Plaintiff in connection with that interview but that the Plaintiff was not willing to cancel the agreement for sale and to obtain refund of the earnest money which apparently S.K. Guha had suggested in the interview on the preceding Thursday, i.e., on August 2, 1962. Messrs. Mukherjee and Biswas in the same letter enquired as to whether the documents referred to in the affidavit of Khagendra Lal Saha were still in the possession of the liquidator of Nath Bank Ltd. (in liquidation) and whether any suit had been filed by Nath Bank Ltd. (in liquidation). In the event of such suit having been filed Messrs. Mukherjee and Biswas asked for particulars of such suit. Messrs. Mukherjee and Biswas also requested S.K. Guha to return the certified copy of the decree dated March 2, 1954 and the certified copy of the Commissioner''s report in Suit No. 1086 of 1942 which they had returned to S.K. Guha at his request on February 13, 1962. On August 6, 1962, S.K. Guha wrote to Messrs. Mukherjee and Biswas stating that the Plaintiff had kept the transaction outstanding for more than a year and that "it is abundantly clear that he has no present intention to complete the purchaser". S.K. Guha says that it is for that reason that he had approached Mr. Biswas to cancel the agreement and take back the earnest money. S.K. Guha states that his client had no knowledge of the questions asked in the previous letter of Messrs. Mukherjee and Biswas and could not be of any further assistance to Messrs. Mukherjee and Biswas in the matter. He complains that the questions have been put only to delay the matter further. S.K. Guha further states that his client was not prepared to be bound indefinitely under the agreement for sale and that his client had instructed Kim to return the earnest money paid by the Plaintiff without exercising his right to have the earnest money forfeited. This letter appears to have been received by Messrs. Mukherjee and Biswas on August 7, 1962, at 10-55 A.M. On August 8, 1962, S.K. Guha sent a cheque for Rs. 5,009 drawn in favour of the Plaintiff in refund of the earnest money paid by him on October 1, 1960. The letter was received by Messrs. Mukherjee and Biswas on the same day at 12-05 P.M. On the same day, i.e. on August 8, 1962, Messrs. Mukherjee and Biswas returned the cheque stating that their client, the Plaintiff, was not agreeable to the cancellation of the agreement for sale and to obtain refund of the earnest money. They further state that "the reason for keeping the transaction outstanding" will appear from the correspondence that had passed between the Solicitors and they state further on instructions from their client that the Plaintiff was a willing purchaser and it was incorrect to suggest that he had no intention to complete the purchase. They further stated that if any attempt was made by the Defendant to commit a breach of the agreement for sale the Plaintiff would take legal steps for protection of his interest. On August 24, 1962, Messrs. Mukherjee and Biswas sent the requisitions on title for answer. By a letter dated August 27, 1962, S.K. Guha refused to answer the requisitions on title and sent back the cheque stating that the Plaintiff was never ready to complete the transaction within a reasonable time. He also asked for return of the title deeds sent on accountable receipt. On August 28, 1962, Messrs. Mukherjee and Biswas wrote to S.K. Guha denying the allegations made by him in his letter of August 27, 1962 and repeating that the Plaintiff was all along ready and willing to perform the contract. They, however, returned the documents received under accountable receipt "without prejudice". Thereafter on September 8, 1962, the present suit was filed by the Plaintiff. The Plaintiff alleges that the Defendant has wrongfully refused to answer the requisitions and has committed breach of the agreement. The Plaintiff claims specific performance of the agreement and also damages for Rs. 25,000 in addition to specific performance. In the alternative the Plaintiff asks for Rs. 50,000 as damages in lieu of specific performance.

The Defendant in his written statement contends that though the Defendant himself was at all material times ready and willing to take all steps necessary for enabling the Plaintiff to complete the sale, it was the Plaintiff who failed or neglected to do so on a false and flimsy pretext and that the Plaintiff is not therefore entitled to ask for any relief. The Defendant in his written statement has stated the circumstances in which he could not deliver to the Plaintiff for his inspection two documents which were lying with the liquidator, Nath Bank Ltd. (in liquidation). The Defendant has also contended that the particulars and information asked for by the Plaintiff in his Solicitors'' letter of August 6, 1962, were not necessary and in any event could be easily obtained by the Plaintiff from the sources indicated by the Defendant''s Solicitor. The Defendant claims that he was not liable to supply all the information�s and particulars asked for by the Plaintiff. The Defendant also took a point in the written statement that there was no concluded agreement between the parties.

On these pleadings the following issues were settled for determination:

(a) Was there any agreement between the Plaintiff and the Defendant as alleged in para. 1 of the plaint?

(b) Is the agreement, if any, still subsisting?

Did the Defendant fail or neglect to deliver to the Plaintiff''s Solicitor the documents of title in respect of the said premises as alleged in para. 4 of the plaint?

Was the repudiation of the said purported agreement for sale of the said premises by the Defendant wrongful as alleged in para. 11 of the plaint?

Did the Defendant fail and neglect to make out a marketable title to the said premises as alleged in para. 13 of the plaint?

Was the Plaintiff ready and willing to perform his part of'' the said contract as alleged in para. 14 of the plaint?

Has the Defendant wrongfully failed or neglected to take further steps to complete the said agreement as alleged in para. 15 of the plaint?

Is the Plaintiff entitled to specific performance of the contract as alleged in para. 16 of the plaint?

To what relief, if any, the Plaintiff is entitled?

The Plaintiff himself gave evidence on his behalf. No oral evidence was given on behalf of the Defendant.

It appears from the judgment of the learned trial Judge that Mr. B.N. Sen, learned Counsel appearing for the Defendant, did not address any argument before him on the question as to whether there was a concluded contract by correspondence. In agreement with the learned trial Judge we find that there was undoubtedly a concluded contract by correspondence. The offer was contained in the Plaintiff''s letter of October 1, 1960, addressed to the Defendant''s Solicitor and was accepted by the Defendant''s Solicitor acting on behalf of the Defendant in his letter of October 3, 1960. In connection with this question as to the existence of a concluded agreement, Mr. Sen appears to have argued at one stage that the Plaintiff had failed to pay the earnest money to the Defendant since earnest money was to be kept by the Defendant''s Solicitor who was to return the money in the event of the Defendant''s failure to make out a marketable title. This point was also not seriously urged by Mr. Sen and the learned trial Judge has rejected this plea. No argument was addressed to us when the appeal was heard. We have no doubt that there is no substance at all in this argument.

There is another preliminary point taken by Mr. Sen at the time of trial which also was rejected by the learned trial Judge. Mr. Sen apparently argued that since the contract between the parties clearly provides for a return of the earnest money in the case of failure on the part of the Defendant to make out a marketable title that was the only remedy to which the Plaintiff was entitled, i.e. to say, the Plaintiff could only ask for refund of the earnest money and not for specific performance of the contract. The learned trial Judge rejected this argument of Mr. Sen. We are in respectful agreement with the learned trial Judge that there is no substance in this contention of Mr. Sen either.

Lastly, Mr. Sen took another preliminary point and contended that when the Plaintiff returned the documents of title after the repudiation of the contract by the Defendant, the Plaintiff must be held to have accepted the repudiation and was, therefore, no longer entitled to ask for specific performance of the contract. On this point also we are in respectful agreement with the finding of the learned trial Judge that the Plaintiff''s Solicitors were bound to return the documents of title on receiving a demand for the same from the Defendant''s Solicitor because they were holding these documents on accountable receipts and therefore, such return cannot be interpreted as acceptance of repudiation of the contract by the Defendant.

Though rejecting these preliminary objections of Mr. Sen which we have mentioned above, the learned trial Judge found in favour of the Defendant on the two most vital issues in this case. Firstly, the learned trial Judge found that the Plaintiff was guilty of delay in the negotiations between the parties at the time of investigation into title. In coming to this finding the learned trial Judge also held that the documents that had been handed over by the Defendant to the Plaintiff were enough to establish the Defendant''s title to the property in suit and also to prove that there was no incumbrance in respect of that property. The learned trial Judge held that it was enough for the Defendant''s Solicitor to send four out of the six documents asked for by the Plaintiff when the Defendant explained at the same time that the other two documents were riot in his possession and that the Commissioner''s report which stated that they were in the possession of the Defendant was erroneous. The learned trial Judge found that the Plaintiff''s conduct in insisting on the production of these two documents was unjustified. Secondly, the learned trial Judge found that the Plaintiff has not proved his readiness and willingness to perform his part of the contract.

We shall now address ourselves to this question as to whether the Plaintiff has been guilty of delay and whether the Plaintiff has proved his readiness and willingness to complete the sale.

Though time was admittedly not of essence of the contract in instant case as indeed the learned Judge has found in his judgment the question of delay is still important. The agreement of sale and purchase of the property was concluded on October, 1960 and the final repudiation of the agreement by the Respondent was made in S.K. Guha''s letter of August 6, 1962. The intervening period of two years certainly denotes that there was considerable delay in the negotiations in connection with the transaction. The question is: who is responsible for this delay? It is important in this connection to remember that during the protracted correspondence between the parties'' Solicitors during this long period of two years there is only one complaint of delay and that was made by the Respondent''s Solicitor in his letter of August 6, 1962, where he says that the question asked by Messrs. Mukherjee and Biswas in the second para, of their letter of the same date had been put "only to delay the matter further". The fact that the Respondent never complained of delay before the actual date of repudiation of the contract by himself takes away practically the whole string out of this complaint because it was then the Respondent''s interest to make out a case for delay. But we have to decide, on the basis of the correspondence between the parties as to whether there was actually any delay or laches on the part of the Plaintiff. We have to keep in mind that one of the terms on which the Plaintiff accepted the Defendant''s offer in his letter of October 1, 1960, was as follows:

The title deeds relating to the property shall be delivered to my Solicitors Messrs. Mukherjee and Biswas of 10, Old Post Office Street, Calcutta on their accountable receipt within one week from the 24th October when the office of my Solicitors will reopen after the Puja vacation and the transaction shall be completed within three months from the date of delivery of the title deeds.

In terms of this clause the Plaintiff was entitled to get three months for investigation of title and completion of other formalities from the date of delivery of the title deeds. It appears that up till the last moment there was at least one title deed relating to the property which had not been supplied to the Plaintiff. According to the Plaintiff, the Defendant had neither produced that particular document (viz., registered conveyance dated February 23, 1942, of premises No. 37, Colutolla Street, Calcutta, from Nripendra Lal Dutt to Khagendra Lal Saha) nor given sufficient explanation for its loss or non-production. Prima facie the deed in question should have been in the possession of the Defendant: that is what has been stated in the Commissioner''s report which is a part of decree in the partition suit. To that extent the Plaintiff was at least, to start with, justified in asking for production of the document. It is true that the Defendant''s Solicitor told the Plaintiff''s Solicitors that none of the original title deeds went into his client''s possession inspite of the Commissioner''s direction that they should be made over to the Defendant. But Messrs. Mukherjee and Biswas at once drew the attention of S.K. Guha to the Commissioner''s report, a certified copy of which had apparently been procured by Messrs. Mukherjee and Biswas, in which the Commissioner had clearly stated that all the documents of title of the joint estate were in his possession and that he had further directed that the title deeds of properties included in Lot A fully described in Schedule 2 of the report (which included the present suit property), were to remain in the custody and possession of the Defendant. The Plaintiff''s Solicitors gave a list of six title deeds of the properties in Lot A which were given in that report in their letter of December 28, 1960 and requested the Defendant to reconsider the matter. They also asked the Defendant to send a copy of the affidavit to which the Defendant had referred in their letter of December 27, in which according to them, the parties to the partition had made a clear statement that no original title deeds had come into the Defendant''s possession. It appears that for three months and twenty days after receipt of this letter the Defendant took no action whatsoever until on April 17, 1961, the Defendant sent four of the documents enumerated in the Plaintiff''s Solicitors'' letter of December 28. That the Defendant did produce at least four documents justifies the stand taken by the Plaintiff in insisting on the production of the title deeds inspite of the earlier statement of the Defendant that he was not in a position to do so. The Defendant, however, even in this letter of April 17, did not send two documents and reiterated the earlier story that these two documents were never delivered to the Defendant. But there is one important statement in this letter In this letter the Defendant''s Solicitor states that according to the affidavit of Khagendra Lal Saha who was a party to the suit Satyendra Lal Dutt v. Nripendra Lal Dutt filed before Mr. T.K. Ghose, the Commissioner of Partition, the two missing documents in question "are with the liquidator, Nath Bank Ltd. (in liquidation)". The Defendant''s Solicitor did not send the affidavit to the Plaintiff''s Solicitors, but requested them to inspect the original affidavit of Khagendra Lal Saha which was lying with Mr. T.K. Ghose. The Plaintiff''s Solicitors did not waste any time after this but called upon the Defendant to produce for their inspection a copy of the affidavit of Khagendra Lal Saha. They said they would consider the question of inspection of the original affidavit only if necessary. Messrs. Mukherjee and Biswas further wanted to know how those two particular documents which were according to the Defendant in the possession of the liquidator, Nath Bank Ltd. (in liquidation) had gone into the liquidator''s possession. They wanted to know the proceedings in which these documents could go into the possession of the liquidator and also the right under which they were held by the liquidator. In reply to this letter S.K. Guha sent after a lapse of almost three weeks a copy of the affidavit of Khagendra Lal Saha. In that letter S.K. Guha makes no reference to the enquiries of Messrs. Mukherjee and Biswas regarding the nature of the proceedings in which the documents had gone into the possession of the liquidator. It was Messrs. Mukherjee and Biswas who again returned to the charge on July 11, 1961 and told the Defendant''s Solicitor about the desirability of arriving at some sort of finality in the transaction. They say that the Plaintiff had requested them to arrange for the interview with the Defendant''s Solicitor in which both the parties could be present. Such a meeting was arranged on July 27, 1961. It is not known what happened at that conference. In the Defendant''s Solicitor''s letter of February 13, 1962, written practically six months after this conference, S.K. Guha asks for return of certain documents but does not complain of delay and indeed makes no reference to what was the state of affairs in regard to the investigation of the title. There is no evidence to tell us exactly what was happening between July 27, 1961 when presumably there was a conference between the Solicitors of both parties and March 24, 1962, when S.K. Guha wrote a letter to Messrs. Mukherjee and Biswas. In that letter it appears that S.K. Guha does not give any suggestion that he has any complaint about the manner in which the Plaintiff was proceeding with the investigation of title. On the other hand, he is on the defensive in that letter. He pleads that his client was not in a position to deliver two documents which the Commissioner of Partition had ''inadvertently'' stated as having been delivered to the Defendant. He refers to the affidavit of Khagendra Lal Saha and he repeats that the Commissioner of Partition was also himself prepared to make a fresh statement to that effect. He further says that he tried to get a statement from the liquidator of Nath Bank Ltd. to the effect that the documents were lying with him but apparently the liquidator refused to give such a statement. S.K. Guha then goes on to say that he had consulted his counsel as to the method of rectification of the misstatement in the Commissioner''s return. He frankly states that nobody has been able to suggest to him any practical procedure for doing this. Indeed, he appeals to Messrs. Mukherjee and Biswas to find out a way out of this impasse. He says; "I shall be thankful if Mr. Biswas can advise me as to how it can be done." Finally, he requests Messrs. Mukherjee and Biswas to be satisfied with a statement which the Commissioner of Partition had agreed to make regarding these two documents and then to proceed with the completion of the transaction. He incidentally refers in this letter that the Plaintiff had gone and seen him. Upto this point therefore, there is no question of Messrs. Mukherjee and Biswas having committed any laches or delay. Messrs. Mukherjee and Biswas, it appears, requested S.K. Guha on April 18, 1962, to send (a) a copy of the affidavit of Khagendra Lal Saha and also (b) a draft of the statement which, according to S.K. Guha, the Commissioner of Partition was prepared to make. The Defendant''s Solicitor S.K. Guha took seven weeks to send a copy of the affidavit of Khagendra Lal Saha counter-signed by the Commissioner of Partition. But even then he did not send a copy of the draft statement which, according to him, T.K. Ghose was prepared to make. This happened on June 11, 1962. After this there was another dark period during which neither party took any positive step in this matter. But, it appears from the letter dated August 6, 1962, of Messrs. Mukherjee and Biswas that S.K. Guha went and saw Messrs. Mukherjee and Biswas personally on August 2, 1962 and requested for cancellation of the agreement. According to Messrs. Mukherjee and Biswas they consulted their client, i.e. the Plaintiff but the Plaintiff was not either willing to cancellation of the agreement for sale or to obtain refund of the earnest money. In the same letter, i.e. to say, the letter of August 6, 1962, Messrs. Mukherjee and Biswas wants to know whether the documents mentioned in the affidavit of Khagendra Lal Saha which had been sent by S.K. Guha on June 11, 1962, were still in the possession of the liquidator of Nath Bank Ltd. (in liquidation). They further enquired if Nath Bank had filed a suit and if so, what were the particulars of that suit. Messrs. Mukherjee and Biswas also asked for return of two documents which they had at one stage given to S.K. Guha at his request. Upto this point of time, apart from an alleged request on the part of S.K. Guha to cancel the agreement, the agreement was subsisting between the parties and neither party had complained that there was any laches or delay. The position as it stood on this day, or, to be more correct, on the previous day, i.e. August 5, 1962, was this that Messrs. Mukherjee and Biswas were insisting on the supply of certain documents or for satisfactory reasons for non-production of the same. That seemed to be the position even when Messrs. Mukherjee and Biswas''s letter of August 6, 1962 was addressed to S.K. Guha. The situation changed radically after this letter had reached S.K. Guha who in his reply of the same date, for the first time comes out with a complaint that the Plaintiff had been delaying matters and that his client, the Defendant was no longer prepared to keep the transaction outstanding. In that letter S.K. Guha asserts: "It is abundantly clear that he has no present intention to complete the purchase". S.K. Guha seeks to explain his visit to Mr. Biswas with a request for cancellation of the agreement by this statement. He refuses to answer the questions put by Messrs. Mukherjee and Biswas in their letter of August 6, 1962 and states in clear categorical language that his client could not be bound indefinitely under the agreement for sale and had instructed him to return the earnest money of the Plaintiff without exercising the right to forfeit the earnest money. This letter is alleged to have reached Messrs. Mukherjee and Biswas on August 7, 1962, at 10-55 A.M. This is recorded in an endorsement on the top of the letter. On August 8, 1962, S.K. Guha sent a cheque for Rs. 5,000 in refund of the earnest money paid by the Plaintiff. There is no need here to recapitulate what happened later. The point is whether any portion of the delay in completion of the transaction can be attributed to laches on the part of the Plaintiff or his Solicitor.

The learned trial Judge in his judgment found the Plaintiff guilty of delay. The learned Judge gave a definite finding that the Plaintiff delayed for at least 16 months in sending the requisitions on title. For coming to this finding the learned Judge relied on two grounds: firstly, that the Plaintiff appears to have instructed the Solicitors after a delay of six weeks and secondly, the Plaintiff had through his Solicitors been demanding documents which according to the learned Judge were "wholly irrelevant, unnecessary". The learned Judge also commented that when the Plaintiff had been told that the documents in question had not come into the Defendant''s possession, the Plaintiff behaved unreasonably by demanding proof of it. With great respect to the learned trial Judge we find ourselves in disagreement with the learned Judge on this point. S.K. Guha sent four documents to Messrs. Mukherjee and Biswas on November 3, 1960. By November 4, 1960, Messrs. Mukherjee c Biswas had not received formal instructions from the Plaintiff. That is the only evidence that we have in our possession regarding Plaintiff''s delay in the issue of instructions to his Solicitors. But since Messrs. Mukherjee and Biswas had perused the papers and also sent a few questions by December 13, 1960, there is no reason to suppose that there was any delay after November 4, 1960, in Messrs. Mukherjee and Biswas''s getting instructions from the Plaintiff. They must have taken some time to read papers and to consider the title disclosed in those papers. Even if there had been a short delay on the part of the Plaintiff at that stage, that would pale into insignificance when we bear in mind the time that S.K. Guha took in dealing with the queries of Messrs. Mukherjee and Biswas. For instance, S.K. Guha appears to have taken almost four months in considering the letter of December 28, 1960, sent by Messrs. Mukherjee and Biswas. Indeed, if one goes through the correspondence carefully it is apparent that except for one period when both sides seem to have been equally quiescent, viz., the period between July 27, 1961 and February 13, 1962, S.K. Guha has by and large taken much longer time to deal with the correspondence than the Plaintiff''s Solicitors. The important thing to remember in this connection is that even S.K. Guha never complained until at the last moment that there was any delay on the part of the Plaintiff or his Solicitors in dealing with this matter. The main question, therefore, which calls for our attention is the question whether the Plaintiff was justified in insisting either on the production of the two documents which the Defendant had failed to produce or whether the Plaintiff was justified in insisting on receiving some satisfactory explanation for the non-production of those documents.

The learned Judge considered the deeds unnecessary. Prima faice, however, when it appears that the deeds have been deposited in mortgage with the bank in liquidation, one cannot resist the impression that the question whether the deeds are necessary or not is a matter that should be left to the parties and their Solicitors. Even the Defendant''s Solicitor S.K. Guha never considered it unnecessary. His letters show that he was dealing with a rather unusual situation and he was puzzled about the proper procedure to be followed in this case but he never contended in the protracted correspondence that he had with Messrs. Mukherjee and Biswas that the documents were unnecessary. Indeed, it appears from his own letter that S.K. Guha took special legal advice and even invoked the advice of Mr. B.K. Biswas of Messrs. Mukherjee and Biswas, the Plaintiff''s Solicitor, about the steps that he should take in the matter.

As far as we can gather from the records, the premises in suit was part of a property belonging to the Defendant''s family for almost 100 years. In a partition suit between the Defendant and his brother Nripendra Lal Dutt in which each brother was declared entitled to a moiety, the suit property was allotted to the Defendant by the decree in the partition suit (Suit No. 1086 of 1942). In that suit one Khagendra Lal Saha to whom the Defendant''s brother Nripendra had transferred his undivided share in the premises in suit as well as another premises, was the third Defendant. The Commissioner of Partition allowed the entirety of the premises in suit to the Defendant. Other properties were allotted to Nripendra and Khagendra Lal Saha. On this ground the learned trial Judge thought that it was enough for the Defendant to prove that the premises in suit had been allotted to him in the partition decree. We cannot, however, persuade ourselves to agree with the learned trial Judge on this point. A purchaser of a property which was the subject-matter of a partition suit must not only be satisfied that the property belonged to the vendor as a result of the partition but also that all necessary parties had been added as parties in the partition suit. Such necessary parties would include purchasers of undivided shares also. The purchaser of the property must, therefore, make sure that no purchaser of undivided share had been left out of the partition suit. Therefore, from this point of view a purchaser would be entitled to make enquiries if he finds that deeds relating to a part of the partitioned property are in the hands of a mortgagee. Indeed, it would be unwise on the part of a purchaser not to make such enquiries. After all, no information had been given in this case by the vendor''s Solicitor as to whether the mortgagee, i.e. to say, the Nath Bank Ltd. (in liquidation) had taken any steps or whether the property had been sold to another person. The additional fact that title deeds which according to the partition decree embodying the report of the Commissioner of Partition should be in the hands of the vendor were not in the hands of the vendor but in the hands presumably of a mortgagee ought to put on guard any prospective purchaser. From this point of view, it is difficult to find fault with Messrs. Mukherjee and Biswas for making persistent enquiries about the custody and production of the deeds and about the steps taken by the bank to enforce the mortgage. No prudent buyer and not certainly a reputed firm of Solicitors like Messrs. Mukherjee and Biswas would be justified in ignoring "the peril of the deeds having been deposited with some one as a security for a loan". The following observation in Mayne''s Treatise on Hindu Law and Usage, 11th ed., at p. 561 shows the wisdom as well as the justification of the conduct of the Plaintiff''s Solicitor in this matter:

A decree for partition made in a suit instituted by a member of a joint Hindu family is therefore res judicata as between all who are parties to the suit. Besides the coparceners, the wife, mother or grandmother, when entitled to shares on partition are necessary parties to the suit as well as the purchaser of a coparcener''s interest.

Though there is some difference of opinion as to whether a mortgagee is a necessary party to the partition suit since he is only entitled to the properties allotted to his alienor, there is no doubt that the purchaser of a coparcener''s interest in a necessary party. See Duri Bhagavanlu v. Tadepatri Veeravadhanulu I.L.R.(1909) Mad. 246.

From this point of view even though it can be contended that of the six documents demanded by Messrs. Mukherjee and Biswas in their letter of December 28, 1960, Item No. 6 is a document with which the Defendant was not seriously concerned, it can hardly be denied that Item No. 5 was a document relating to the property and therefore, to that extent the Plaintiff was entitled to ask for that document or at least to be satisfied as to the reason why that document would be in the possession of a bank in liquidation. It is true that ordinarily a vendor cannot be asked to produce documents which are not in his possession P.S. Rathna Bai v. Mrs. A.R. Barrass AIR 1943 Mad. 593, but a purchaser is entitled to have an explanation why the document is not in the possession of the vendor particularly in the circumstances of the case where according to a High Court decree the document should be in the possession of the vendor.

We have to keep in mind the following dates for appreciating the Plaintiff''s stand. Khagen''s deed of sale is dated February 23, 1942. The partition suit had been filed by the Defendant in 1942. Khagen''s mortgage was some time between February and June, 1945. The preliminary partition decree was in August, 1948. Nath Bank (in liquidation) had filed its mortgage suit in 1951. In that suit the preliminary decree is dated August, 1952 and the final decree was passed in September, 1953. The final decree in the partition suit was made in March, 1954. From these dates it is quite clear that the Defendant was not in a position to know whether in the mortgage suit there had been a purchaser. Indeed Messrs. Mukherjee and Biswas did not know about the mortgage suit upto August 6, 1962. As a purchaser in the mortgage suit would have been a necessary party in the partition suit, no responsible Solicitor can avoid making enquiry about the deed of sale.

In these circumstances, we cannot hold that the Plaintiff or his Solicitor was acting wrongly or improperly or without justification in insisting on the production of the two documents or at least in asking for an explanation for their non-production. Once this position is accepted, it is difficult for us to say that the Plaintiff was guilty of delay in the matter of investigation of title.

The next important point that arises is on the question as to whether the Plaintiff was ready and willing to buy the property. It will be of advantage if we clear up the legal position on this question at the very outset. It is well-known that where one party to a contract refuses or omits to perform his part of the contract there are two remedies open to the other party. He may either file a suit for specific performance of the contract or he may bring an action for damages for its breach. Of course, even if he sues for specific performance he may ask for damages either in addition to or in substitution for specific performance. The essential feature of a suit for specific performance is this that the Plaintiff does not treat the contract as at an end and does not consider himself to be discharged from its obligations: the contract must be treated as still subsisting. Indeed, the Plaintiff has in a suit for specific performance to plead continuous readiness and willingness from the date of the contract to the time of hearing to perform the contract on his part. Since the celebrated decision of the Privy Council in AIR 1928 208 (Privy Council) , it has always been considered that a failure on the part of the Plaintiff to make an averment to that effect would lead to the dismissal of the suit. In the words of Lord Blaneshburgh the right of the Plaintiff to specific relief

would be dependant upon his having been himself up to the date of decree ready and willing to perform the contract on his part.

In that case the Plaintiff alleged that he had throughout been ready and willing and the Privy Council held that this allegation imports a continuous readiness and willingness up to the time of the hearing. The Privy Council prescribes the duties of the Plaintiff in regard to a suit for specific performance in the following language:

In a suit for specific performance, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit.

The Privy Council also observed at p. 375:

Although so far as the Act is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England (s. 24(b) is the nearest), it seems invariably to have been recognized and on principle their Lordships think rightly, that the Indian and the English requirements in this matter are the same: see, e.g., Karsandas v. Chhotalal 25 B.L.R. 1037 (1050).

In the instant case the Plaintiff in para. 14 of the plaint has made an averment in the following terms:

The Plaintiff has been at all material times and still now is ready and willing to perform his part of the said contract.

This, of course, has been traversed in para. 18 of the written statement. Therefore, it is necessary for the Plaintiff to prove that he was both ready and willing to perform his part of the agreement upto the date of hearing of the suit. The learned Counsel appearing for the Plaintiff-Appellant relies on four particular documents to show the Plaintiff''s anxiety to complete the transaction. The Plaintiff in his letter of October 1, 1960, to S.K. Guha while accepting the Defendant''s offer on his own initiative fixed the time for completion of the transaction though there was no such condition in the original offer of the Defendant. The Plaintiff suggested in condition 8 of that letter that the title deeds relating to the property will be delivered within one week from October 24, when the office of the Plaintiff''s Solicitor was due to reopen after the Puja vacation and the transaction was to be completed within three months from the date of delivery of the title deeds. In July, 1961, when the matters had been pending for a long time Messrs. Mukherjee Sc Biswas in their letter of July 19, 1961, addressed to S.K. Guha, complained that the matter had been pending for such a long time and stressed the desirability of arriving at some finality. They mentioned specifically in that letter that their client, i.e. the Plaintiff had requested them to arrange for a conference between the Plaintiff and the Defendant and their respective Solicitors. The suggestion came from the Plaintiff and indeed it is the admitted case of both parties that there was such a conference arranged at the request of the Plaintiff. But inspite of this conference matters could not be brought to a satisfactory conclusion and the Plaintiff went out of his way to see the Defendant''s Solicitor. This appears from S.K. Guha''s letter to Messrs. Mukherjee and Biswas where S.K. Guha himself mentions that the Plaintiff had seen him in that connection and S.K. Guha had explained the position to the Plaintiff. S.K. Guha also states that he found the Plaintiff entirely dependent on the advice of his Solicitors. Lastly, on August 8, 1962, Messrs. Mukherjee and Biswas wrote to S.K. Guha stating categorically that the Plaintiff was a willing purchaser and it was incorrect to suggest that he had no intention to complete the purchase. The Plaintiff''s counsel pointed out in this connection that right upto August 6, 1962 the Defendant had never complained that the Plaintiff was not willing to complete the purchase. On the other hand, this complaint followed immediately after Messrs. Mukherjee and Biswas had informed S.K. Guha that the Plaintiff was not willing to cancellation of the agreement for sale as had been suggested by S.K. Guha on behalf of the Defendant in a personal interview that he had with Mr. Biswas on August 2, 1962. Since willingness is a matter not to be measured by what the Defendant says, but a matter to be judged with reference to the facts and circumstances of the case, it was argued on behalf of the Plaintiff that the correspondence between the parties is a clear indication that the Plaintiff was all along very anxious to conclude the transaction but that the Plaintiff was at the same time anxious that he did not buy litigation and was, therefore, insisting on satisfaction about the title. The Plaintiff in his evidence also stated that he was ready and willing to purchase the property and that he was so ready and willing from the date of the contract until the date when he was giving evidence (Qq. 8 to 10). He only added that regarding investigation of title of the property he had left the matter to his Solicitors. In cross-examination it was put to him that he had not ready money to pay at the relevant time. He repudiated this suggestion but he insisted that if his Solicitors advised that it was safe for him to buy the property he would do so. He insisted that without the Solicitors'' advice he was not prepared to buy. The Plaintiff''s answer to Q. 109 is important and I set it out verbatim:

Q.: And I am putting it to you that you have not disclosed your bank account, books of account and other papers to show your financial position because if you would have disclosed them it would have proved that you had not the means to pay the balance of purchase money during this period?

A: I have been an Assessee from the inception of the wealth-tax in India and I am assessed wealth-tax from the assets for Rs. 2,00,000. I am still paying wealth-tax and I can produce the cash for this property at a moment''s notice, even tomorrow morning also if I had not the money I did not have entered into contract by the contract money.

In this state of the evidence it was contended on behalf of the Plaintiff by his counsel that the Plaintiff had done all that he could have done in proving his willingness and readiness to buy the property.

The Defendant''s counsel on the other hand argued that the Plaintiff has given no evidence regarding his ability to pay for the property. A mere bald statement to the effect that he had the capacity to buy the property was not adequate for this purpose. The Plaintiff had neither produced nor disclosed his accounts to show that he had the financial resources to buy the property. He did not tender the money at any stage, nor did he produce the money in Court. Since the entire onus of proving that the Plaintiff was in a position to pay at the proper time devolved on the Plaintiff, he should have produced positive evidence in support of that proposition. In this, according to the learned Counsel for the Defendant, the Plaintiff has completely failed.

The learned trial Judge upheld the Defendant''s contention and found that the evidence was not enough to prove both capacity and willingness on the part of the Plaintiff. The learned Judge found fault with the Plaintiff for not having brought to Court evidence to show that he had paid income tax and wealth-tax. The learned Judge observed:

I am not impressed with the Plaintiff''s promise to produce them tomorrow when he knew fully well that the Plaintiff''s case would be closed that day. The argument continued on the next day but not offer was made even then to tender the document and ask for leave to produce the document.

This observation of the learned trial Judge was of course with reference to the Plaintiff''s answer to Q. 109 which has already been set out. The learned Judge further observed that

acceptable evidence must be tendered of the financial position of the Plaintiff and the other facts so that the Court may be satisfied that the Plaintiff had the ability and the willingness to pay the price and obtain a conveyance as agreed. Such evidence has not been tendered in the instant case.

On the basis of these findings, the learned Judge held that the Plaintiff was not ready and willing to complete the bargain.

We are confronted with the question as to what is the nature and quantum of evidence that the Plaintiff has to adduce in support of his averment that he was ready and willing to perform his part of the contract. As we have already noticed, the Judicial Committee of the Privy Council in the case of Ardeshir Mama v. Flora Sassoon (Supra) had observed that the Plaintiff will not only have to make an averment as to the readiness and willingness but that he is also required to prove a continuous readiness and willingness if the fact was traversed by the Defendant.

Shortly after that judgment the Privy Council had to deal with this point in some greater detail in the case of AIR 1934 91 (Privy Council) . This was a case from Palestine. To appreciate the observations of the Privy Council in this case it is necessary to give a short account of the facts. On July 14, 1925, Chedid entered into a contract with the Plaintiff-Respondent Tenenbaum by which Chedid agreed to sell and Tenenbaum agreed to purchase certain lands situate at Haifa. The purchase was not yet completed when Chedid died. About twenty per cent of the agreed purchase price was paid on the signing of the contract; the balance was to be paid at the time of transfer. The contract contained a clause providing for liquidated damages in the event of failure on the part of either party to complete the deal. It appears that the vendor did not transfer the land on the agreed date. On this allegation the Plaintiff sued the vendor for refund of deposit and also claimed damages The Defendant put in a defence and counter-claim in which he alleged that he had offered to transfer the land by the due date and that the Plaintiff was in default in not accepting the same and that the real reason of the refusal of the Plaintiff-Respondent to accept the transfer was that he had no money to pay the balance of the purchase price. Therefore, it was really the Plaintiff who was in default. Their Lordships of the Privy Council found that the Defendant did not on the agreed date proffer a transfer which the Plaintiff was bound to accept and to that extent the Plaintiff had substantiated his case. The Plaintiff was, therefore, held entitled to a refund of the deposit. Their Lordships, however, went on to hold that as the Plaintiff was not in a position to perform a part of the contract, i.e., to pay the remainder of the purchase price, he was not entitled to recover any damages for breach of contract. Lord Tomlin who delivered the judgment of the Board found that there was no provision in the Turkish law or in any local ordinance which deals with the question as to whether in an action to recover damages for breach of contract the Plaintiff is bound to establish his readiness and willingness to perform his part. In the circumstance his Lordship applied the English law applicable in such cases. His Lordship observes as follows:

Readiness and willingness to carry out his obligation has always been a condition precedent to the Plaintiff''s right to recover damages in respect of breach of one of two concurrent obligations. It is true that today in England it need not be expressly pleaded, but the onus of proving it is nevertheless on the Plaintiff. That onus, in the absence of any evidence to the contrary adduced by the Defendant, may be easily discharged, nor is a tender of money necessary in the case of an obligation to pay money. Evidence of inability to discharge the obligation adduced by the Defendant may however render it necessary for the Plaintiff to satisfy the Court that he was at the material moment in a position to discharge his obligation.

It is to be noted that their Lordships did not consider tender of money on the part of the Plaintiff as necessary for establishing his readiness and willingness to carry out his obligation. Their Lord ships thought that such tender would be necessary only if the Defendant adduce evidence for showing Plaintiff''s inability to discharge his obligation. In the case before their Lordships the Appellant had given positive evidence to show that the Plaintiff-Respondent was not in a position to pay. Indeed, the Defendant had produced a certified copy of an execution minute of the Haifa Court showing that a creditor had obtained a judgment for �30 against the Plaintiff. The certified copy further showed that on July 12, 1928, a petition on behalf of the Respondent had been filed alleging that

owing to hard times the Respondent was prepared to pay off the debt and interest by monthly instalments of �2.

It was contended on behalf of the Appellant before the Privy Council that this was some evidence showing the Respondent''s inability to pay the contracted sum on the due date of the contract and it was incumbent on the Respondent to displace this evidence. But this the Respondent did not do. From this fact their Lordships of the Privy'' Council observed that

the proper conclusion is that the Respondent has failed to discharge the onus of proving his readiness and willingness to perform his part of the concurrent obligations although he has established that Appellant 1 failed to discharge his part.

In the case before us the Defendant had made out a case that the Plaintiff did not have the means to discharge his obligation and to pay for the loan. The Defendant made a clear suggestion in Q. 109 that the Plaintiff did not have such means. It is true that a suggestion in cross-examination never amounts to any evidence. Therefore, it cannot be said that the Defendant had given any evidence to prove the Plaintiff''s inability to complete the purchase to displace which it was necessary for the Plaintiff to tender the purchase price. At the same time, the Plaintiff cannot be completely absolved from his duty of giving more positive evidence of his ability to pay the balance of purchase money. Mr. Hajra appearing for the Plaintiff relied on the Privy Council decision in the Bank of India Ltd. v. Jamsetji A.H. Chinoy and Chinoy and Co. AIR 1950 P.C. 90. That was a case of agreement for purchase of shares and one of the points which the Privy Council had to decide was whether Plaintiff No. 1 was ready and willing to perform his obligations under the contract. On this aspect of the case the Defendants had followed two lines of attack. In the first place, they had said that Jamsetji had taken no step to procure the permission of the Reserve Bank for payment under Rule 92A(2) or for acquisition under Rule 93(2) of the rules made under the Defence of India Act, 1930. This permission was apparently necessary before the transaction could be completed. It was argued that not having procured this permission the Plaintiff was never in a position to implement the contract. Secondly, it was argued by the Defendant that "on his own showing" the Plaintiff was financially incapable of finding the price. The appellate Court of Bombay had found on the evidence that Jamsetji was ready and willing to fulfil his financial obligations under the sale. Their Lordships of the Privy Council agreed with this conclusion and observed:

It is true that Plaintiff 1 stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangement had been made for finding it at the time of repudiation. But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. The question is one of fact and in the present case the appellate Court had ample material on which to found the view it reached. Their Lordships would only add in this connection that they fully concur with Chagla A.C.J, when he says:

In my opinion, on the evidence already on record, it was sufficient for the Court to come to the conclusion that Plaintiff 1 was ready and willing to perform his part o� the contract. It was not necessary for him to work out actual figures and satisfy the Court what specific amount a bank would have advanced on the mortgage of his property and the pledge of these shares. I do not think that any jury if the matter was left to the jury in England would have come to the conclusion that a man, in the position in which the Plaintiff was, was not ready and willing to pay the purchase price of the shares which he had bought from Defendants 1 and 2.

For the foregoing reasons, their Lordships answer question (4) in the affirmative.

It is not necessary for the purchaser always to produce the money or even to show how he procured the finance. It was enough for him to show that he was able to do so.

From the Privy Council judgment as well as the judgment of Chagla A.C.J. it appears that there were sufficient materials on record which showed the Plaintiff''s readiness to complete the purchase. In the instant case before us the Plaintiff, apart from making a bald statement has adduced no evidence, oral or documentary to substantiate his assertion that he did have the means to pay the purchase price. The Plaintiff''s assertion that he is assessed wealth-tax on his assets and that he has been an Assessee for wealth-tax right from the inception of the tax in India is hardly adequate, for that fact, even if true does not show his ability to produce the cash for completing the purchase.

In the case of Brijmohan Mathulal Marwari v. Chandrabhagabai w/o Girdharilal AIR 1939 Nag. 173, the Division Bench of the Nagpur High Court held that after a bargain of sale has been repudiated by the vendor, the purchaser claiming specific performance can, in the absence of any evidence to the contrary, easily discharge the onus about readiness and willingness by simply showing that he is still ready and willing to carry out the bargain. It is to be noted that their Lordships do not hold that it is enough for the purchaser to say that he is ready and willing; the purchaser must show that he is so ready and willing. In this particular case, there had actually been a remand from the High Court to the lower Court for trial of the issue; "was the Plaintiff at all material time ready, desirous, prompt and eager to complete the contract?" After this remand two witnesses had been examined for the Plaintiff and the lower Court after taking the evidence into consideration with all the circumstances of the case found the issue in the affirmative in favour of the Plaintiff. One of the contentions of the Defendant before the High Court was that the Plaintiff had no funds to complete the sale. The High Court held that there was ample evidence in the cross-examination to show that one Girdharilal who was a man of substance and who was in a position to supply the Plaintiff-Respondent with all the money she required was "backing up the Plaintiff in the transaction throughout". The High Court also came to the finding that the Plaintiff-Respondent''s own savings were sufficient to meet the expenditure. Indeed, it appears that in that particular case after getting a decree in her favour the Plaintiff-Respondent deposited the sale price on July 21, 1934.

We have no doubt that "readiness and willingness to pay" is a matter which has to be proved by the Plaintiff by clear and specific evidence not only to show that the Plaintiff was willing to complete the transaction but that he was in a position to complete the transaction. Reference may be made in this connection to the judgment of Lord Abinger in De Medina v. Norman (1842) 9 M. & W. 820 (827), where his Lordship said that the words "readiness and willingness" used in this connection implied not only the disposition but the capacity to perform the contract. In the present case the Plaintiff has not, in our opinion, given sufficient evidence to show that he had the capacity to complete the purchase, i.e., to say, the Plaintiff has failed to prove that he was continuously ready and willing to fulfil his part of the bargain.

In the result this appeal must fail. We, therefore, order as follows: The appeal is dismissed with costs and the judgment and decree dated April 8, 1965, are confirmed. Certified for two counsel.

Let the operation of the order be stayed for a period of six weeks from date.

Mitter, J.

I agree.