Pazhaniappa Chettiyar vs South Indian Planting and Industrial Co. Ltd. and Another

These two appeals are presented by Lekshmana Chettiyar Pazhaniappan Chettiyar who is Defendant 2 both in O.S. 4/17 and 136/17 on the file of the Court below. Defendant 1 in O.S. 4/17 is the South Indian Planting and Industrial Company Ltd., (in voluntary liquidation) represented by the liquidator S. Natesa Iyer. O.S. 138/17 was filed by Defendant 1 in the first suit. Plaintiff in the first suit is Defendant 1 in the second. The learned District Judge of Kottayam tried both the suits together and pronounced judgment on the same day that is, on 26th Mithunam 1121 but wrote separate judgments. All the evidence was recorded in the earlier suit.

O.S. No. 4/17 was for specific performance of a contract for sale of property executed by Natesa Iyer who was the Managing Director in conjunction with one Seetharam Iyer, a member of company, both of whom were authorised by a resolution dated 12-5-1935 (Ex. 1A) and confirmed on 26-5-1935 (Ex. 18) to sell the property. It was pursuant to that authority that they executed the contract sought to be enforced which is dated 16-1-38 and marked as Ex. Q. A period of two months is fixed in the contract for the completion of the sale. The sale was not effected pursuant to Ex. Q, for reasons which will appear hereafter. On 11-3-1938 a notice was issued on behalf of the Plaintiff to the executants of the contract. The reply thereto was dated 14-3-1938 which is marked as Ex. 9 in the case. There was a rejoinder issued on behalf of the Plaintiff which bears the same date as Ex. IE and which is marked as Ex. X in the case.

On 29-10-1935 a notification was published in the Govt. Gazette by the Registrar of Joint Stock Companies stating that the company had not been working for some time and that if no ground be shown within a time specified the company will be removed from the register within three months. It was on the eve of the expiry of the period fixed for such removal but without either the one or both the parties being aware of that circumstance that Ex. Q was executed. Pursuant to the notification the company was due to have been removed from the register the day next after the date of Ex. O. It was not however, so removed. The removal was in fact effected only on 14-3-1936. On 28-3-1936 an application was presented before the Court for the restoration of the company back to the register. That application is marked as Ex. BC in the case. It was supported by an affidavit (Ex. R) dated 25-10-1111 by one of the creditors of the company. On 2-11-1111 corresponding to 15-6 1936 the application was allowed and the company was restored to the register. See the order Ex. 2, which is also embodied in Ex. BG which is the certified copy of the application.

On 31-8-1930 the company resolved to go into voluntary liquidation. Ex. IC is the resolution in that behalf. It was confirmed by resolution dated 27-9-1936 marked as Ex. ID in the case whether it was a Members voluntary winding up or Creditors'' voluntary winding up, has not been made clear to us. It would, however, appear from the Minutes book produced in the case and the very resolution above referred to, that the reason for the winding up is not the inability of the company to pay its debts but that it was not possible to work the company at a profit. If it was a case of "Members'' voluntary winding up", there must have been a certificate of solvency as required by Section 207, Indian Companies Act. Though this Act was not in force in Travancore at the relevant period, there was a Companies Act in that State containing provisions similar to those contained in the Indian Companies Act.

Natesa Iyer who was the Managing Director and who was one of the persons authorised to effect the sale of the property in question was appointed Liquidator by the aforesaid resolutions. On 26-12-1936 the liquidator assigned the property in question to Defendant 2. Ex. IV is the deed of assignment. Though Defendant 2 took the assignment, he does not appear to have ''followed it up by taking steps either to recover the property (which was in the possession of the Plaintiff) or to pay the balance consideration for the sale. This conduct of the transferee Defendant 2 led to the issue of the notice on 22-4-1938 (Ex. V) by Defendant 1. Defendant 1 also made an application to the Court u/s 217, Travancore Companies Act corresponding to Section 216, Indian Companies Act which is Company Petition No. 12/1113 on the file of the Court below. The prayer in that petition was for a cancellation of the assignment in favour of Defendant 2 and for directions to execute a deed of assignment to the Plaintiff pursuant to Ex. Q. That petition was resisted by Defendant 2 and was dismissed on 12-7-1113. On 27-7-1114 the Plaintiff filed Company Petition No. 14/1114 in the Court praying for directions to the liquidator to execute a deed of assignment in his favour pursuant to Ex. Q. The transfer in favour of Defendant 2 was impeached therein. That petition was also dismissed on 12-1-1117. Within four days thereafter, that is, on 16-1-1117 the Plaintiff filed O.S. No. 4/1117 for specific performance as already mentioned. That suit was decreed, in his favour and A.S. 286/22 is the appeal presented by Defendant 2 against that decree. The second suit, O.S. 136/1117 was filed on 3-4-1117 by Defendant 1 in the first suit. It was also decreed on the same day. A.S. 285/1122 is the appeal against that decree.

Learned Counsel for the Appellant raised before us three contentions, firstly that Ex. Q is beyond the powers of the two persons Natesa Iyer and Seetharama Iyer, who were authorised to effect a sale of the property by resolutions Exs. 1A and 1B. The point was clarified as meaning that the sale that they could have effected pursuant to the authority given to them was only a sale for ready cash and that the sale contemplated by the contract (Ex. Q) being one not for payment of ready cash of the entire consideration but for prompt payment of a part in caste and a deferred payment of the rest, the contention is that in so far as a part of the consideration for the proposed sale was not to be paid in cash on the transfer, it is beyond the competence of the persons authorised to sell. Secondly, it was contended that the Plaintiff gave up his rights to specific performance of the contract by his conduct. This point was also further clarified as meaning that in Ex. X the notice issued on behalf of the Plaintiff, a claim is made for return of the money paid on the date of the contract, and for payment of the amount alleged to have been spent on the property, by the Plaintiff as also for damages. Though no doubt mention is made therein that the Plaintiff is willing to take the sale if a clean title is made out, that part is only ancillary to the main claim for damages and, therefore, the claim for specific relief must be deemed to have been abandoned. The third contention raised was that the claim for specific performance was barred by limitation.

Before we deal with these contentions it is necessary to mention a point of procedure. When, learned Counsel for the Appellant mentioned points 1 and 2 as arising in the case, learned Counsel for the Respondent Plaintiff objected that these points; have not been urged either in the Court below or in the memorandum of appeal before this Court. We wanted information upon this point but without pausing to supply the same, learned Counsel for the Appellant proceeded to argue the points themselves, presumably because the objection was unfounded. We gave a full hearing to the case on that basis until it was pointed out to us by learned Counsel for the Respondent that the only ground taken in the appeal before us is grounds No. 4 which runs as follows:

The lower Court ought to have held that Defendant 1 was not entitled to enter into Ex. Q agreement with the Plaintiff when proceedings were pending for removing the name of the- company from the register.

That having been mentioned, learned Counsel for the Appellant pointed out to us ground No. 11 in the Memorandum of Appeal which is as follows:

The Court below ought not to have relied upon subsequent conduct of the parties in order to interrupt the prior notice sent by the Plaintiff repudiating the contract.

The questions proposed to be argued as the first two points in appeal are not thus clearly raised in the memorandum of appeal nor are those points, seen raised in the Court below. The relevant paragraphs in the written statement of Defendant 2 are paras. 4 and 6. The relevant part of para 4 states:

...But those persons had no right to enter into any agreement for sale and the agreement is invalid. Subsequently the Plaintiff acting through the lawyer Mr. S. Padmanabhachari B.A., B.L., Advocate, Madura by a registered notice dated 14-3-1936, addressed to Mr. A. Lekshminarayana Iyer, Advocate, Madura, acting for Defendant 1 company, repudiated the said agreement and claimed repayment of the sum of Rs. 500 advance paid at the time of the agreement.

Paragraph 6 runs as follows:

This Defendant understands that on the date or the said agreement, Defendant 1-company was itself under a threat of cancellation of its registration as per the Joint Stock Company Registrar''s Notification dated 29-10-1935; and this Defendant understands that the company was cancelled by Notification dated 14-3-36. The agreement relied on by the Plaintiff is invalid on this ground also.

The notice referred to in para 4 is evidently Ex. X. That notice is seen to have impeached the agreement as voidable and as one induced by misrepresentation and suppression of material facts. A repudiation of a voidable contract is a totally different thing from an abandonment of the advantages or benefits under an unassailable contract. Indeed the two conceptions are even mutually exclusive. It is clear, therefore, that points 1 and 2 which are sought to be urged by learned Counsel for the Appellant have not been so urged either here or in the Court below. Non-mention of a point in the grounds of appeal may not absolutely debar its being urged before the Court. To urge such a point, however, the fact of its not being so taken in the memorandum of appeal must be brought to the notice of the Court and the permission of Court obtained in the first instance. Though the has not been done in this particular case we do not for that reason omit to consider the question as we have heard the arguments at length both of the learned Counsel for the Appellant and of the learned Counsel for the Respondent Plaintiff.

The first point urged before us is that out of the total consideration of Rs. 5,650 for the sale Rs. 500/- was no doubt paid down in cash along with the agreement. Out of the balance, Rs. 2,500 was to be paid at the time of the completion of the transfer and the balance of Rs. 2,650 was to be secured on a mortgage right which was specified in the contract possessed by the Plaintiff. The argument is that the deferred payment of Rs. 2650/- though secured, was beyond the competence of Natesa Iyer and Seetharama Iyer under the authority conferred upon them by the resolution, Ex. IA.

Ex. IA is as follows:

Resolved that in view of the finances of the company tile cardamom estate belonging to the company be sold as early as possible for the best price available from now and that M/s. V. See-tharamier and S. Natesa Iyerbe authorised jointly to negotiate and effect the sale and sign the necessary documents, receive the purchase money and out of the money so received resolved that the debts of the company be immediately discharged and the balance be utilised to return to the shareholders with a view to the winding up of the company.

This was confirmed, as already stated by resolution dated 26-5-35 marked as Ex. IB. The contention is that when these persons were authorised to sell, the sale must be for cash down, that is, for prompt payment of the full consideration. In support of this argument, learned Counsel relied upon a decision in - ''Jumma Dass v. Eckford'' 9 Cal. 1 (A). Of the two learned Judges who participated in that decision, Sir Richard Garth C.J. disposed the matter on the ground that in giving the document in question it was not purported to bind the principal and therefore the principal was not bound. The other learned Judge, Wilson J., also held against the document executed by the donees of the power-of-attorney on the ground that what they were authorised to do was only to sell which meant sell for a cash price, whereas what they did actually was, affected the sale partly for money and partly for the purchase of certain other shares in some other company. This last, the learned Judge held, was beyond the competence of the power to sell. The learned Judge construed the power of attorney as authorising the donees of the power only to effect the sale for cash consideration and not to effect the sale in exchange by obtaining some other items of property other than money. In this case, however, the agreement to sell was for a consideration to be paid in cash, though payment of part of that consideration was deferred to a future occasion. The decision is thus distinguishable and has no application to the facts of this case. A sale will be nonetheless a sale whether the price be paid down or the price be promised to be paid. The definition of sale in the Transfer of Property Act is to, the effect that "sale" is a transfer of ownership in exchange for a price paid or promised, or part-paid and part-promised.

It was contended that the authority conferred must be strictly construed and interpreted according to the circumstance existing at the time. The argument was that the purpose that was sought to be achieved by the sale was to convert the property into cash in order to enable its being utilised for payment of the company''s debts for whose payment there was great urgency. It was suggested that the company was in great financial embarrassment and that therefore unless the entire consideration for the sale was received in cash, the debts could not be discharged and the object sought to be achieved by the sale effectuated. It was when this point was urged that we put the question as to whether it was a case of Creditors'' or Members'' voluntary winding up. As already stated, the information sought could not be supplied. The minutes book of the company, parts of which have been marked as Exts. IA to D shows that on the date of the resolution, Ex. IA, there was in the possession of the Company an amount of more than 1 lakh of rupees representing the balance of sale proceeds of a tea estate which the company owned and which had been sold for 1 lakh and 80 thousand rupees, from out of which the debts of the company to the tune of Rs. 70,000/- had been discharged, leaving a balance of over a lakh of rupees. This amount was available and pending distribution among the members of the company. There is nothing to indicate that the company was indebted at that time to any extent anywhere near this amount which was available with the company. Debts of a company have precedence and must first be paid before distributing or thinking of distributing the assets of the company among its members. It is no doubt true that a resolution of the company at about the time of Ex. IA authorised the borrowing of money for paying the tax of the property whose payment had been overdue. It is also provided in that resolution that the loan so taken would be a first charge upon the proceeds of the sale of the property which remained in the company and which formed a cardamom estate with an extent of over a hundred acres. Besides the loan thus authorised to be taken and which may have been taken for the payment of land revenue which could not in any event be in excess of what was agreed to be paid to cash in Ex. Q there does not appear to be in evidence any debt which could not have been discharged from out of the cash of Rs. 500/- received along with Ex. Q and also the remaining portion of the consideration which was directed to be paid in cash along with the execution of the deed of transfer. The ground on which it was urged that the intention must have been, though not specifically mentioned in the resolution, that the sale should be for actual prompt payment of the consideration in cash, has not been made out. In the absence of such a ground being made out, there is nothing in the terms of the resolution which will limit the authority to sell for prompt payment of the full consideration.

Both the Appellant and the Respondent alike relied upon Bowstead''s "Digest of Law of Agency", Article 34 which runs as follows:

Where the authority of an agent is conferred in such ambiguous terms, or the instructions given to him are so uncertain, as to be fairly capable of more than one construction, every act done by him in good faith, which is warranted by any one of those constructions, is deemed to have been duly authorised, though the construction adopted and acted upon by him was not the one intended by the Principal.

There are three illustrations to this Article of which the first is as follows:

An agent was instructed to sell goody at such a price as would realise 15s. ton, net cash. He sold them at 15s. 6d per ton, subject to two months credit. Held, that the instructions might fairly be construed as meaning either 15s. not, cash such a price as would eventually realise 15 s. after allowing for interest or a ''del credere'' commission; and that, the sale at 15s. 6d. two months was within the authority.

The other illustrations have no bearing upon the facts of tills case. The first illustration above extracted is the case of - ''Boden v. French (1951) 10 C.B. 888 (B) (See Bowstead on Agency, 11th edition, page 48.) It is clear, therefore, that an authority to sell for cash will enable the donee of the power to sell not. merely for prompt payment lot cash but also for deferred payment. The only condition that is appended to the authority is that the sale must be for the best price. It may be that had payment of a part of the consideration not been agreed to be deferred, the purchaser may not have agreed to pay Rs. 5,650/- for the property. In our judgment the persons who executed Ex. Q were well within their powers under the authority conferred upon them, by the resolutions of the company, Exs. 1A and 1B.

We may mention that the point that is specifically taken in the Court below in the written statement, namely, that Natesa Iyer and Seetharamater who were authorised to sell under the resolution, were not competent to enter into an agreement to sell, whatever be the nature of that agreement, has not been pressed before us. We are of the opinion that an authority to sell must certainly include an authority to agree to sell. The circumstances that the agreement to sell was in the shape of a separate document reduced to writing some time before the actual execution of the deed of sale, will not matter or affect the authority to sell.

The second point urged is that by his conduct the Plaintiff has given up his right for specific performance. Reliance is placed upon (sic) X to sustain this argument. Ex. X refers to the (sic)fact the Plaintiff obtained information that there had been a notification in the Gazette by the Registrar of Joint stock Companies to the effect if no ground be shown within a specified time, why the company should not be struck off from the register, the company would be so struck off within the time specified and that, it was on the eve of the expiry of that period and without, informing the Plaintiff of that circumstance that the contract was got executed by him. It states further that it was on a representation that Natesa Iyer and Seetha(sic) avoid and claim return of the money paid at the time of the agreement, of the amount spent by him in the property which has put in his possession as also other items of expenditure. The notice concludes by saying that

If your client is prepared to give a clean and legal title, my client is prepared still to abide by the terms of the agreement dated 16-1-1936.

The notice was sent by the legal advisor of the Plaintiff to the legal advisor of Defendant 2. The notice proceeds to say:

if your client does not pay these amounts and damages within three days from the receipt of this notice or give a clear and legal title within the said time, please take notice that legal stops will be taken against your client.

The argument urged is that the preparedness of the Plaintiff to take the assignment is secondary to the Plaintiff''s claim for return of the money by way of repayment of the advance, value or improvements, and damages claimed in the notice. The defect'' of title that existed on its date was the non-existence of the company on account of its being struck off from the register. If that be not a fact, or even if it had been a fact, if the company could be restored to the register, then there is nothing wrong with the title. It transpires that at the time when Ex. X was issued, the company had not been removed from the register, though it appears that that fact happened later on that day itself. The last portion of the notice to the effect that "please take notice that legal steps will be taken against your client" is significant as reserving to the Plaintiff whatever rights and remedies the law will give him. There is no election between the remedies of claiming specific performance and claiming damages which an obligee under a contract to sell is entitled to. It may be stated that on the date of the notice, the basis was that in the estimate of the Plaintiff the company had been removed from the register. It is not possible to think of the claim for specific performance having been expressly reserved in the notice. A company which is struck off the register may be directed to be and be restored to the register by an order of Court. Section 247, Clause (6), Indian Companies Act provides for such a case. It reads thus:

247 (6) If a company or any member or creditor thereof feels aggrieved by the company having been struck off the register, the Court on the application of the company or member or creditor, may, if satisfied that the company was at the time of the striking off carrying on business or in operation, or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register, and thereupon the company shall be deemed to have continued in existence as if its name had not been struck off; and the Court may by the order give such directions and make such provisions as seem just, for placing the company and all other persons in the same position as nearly as may be as if the (sic) of the company had not been sruck (sic) the existence of the company on account of the striking off and subsequent restoration. When in Ex. X the Plaintiff complained of want of a clean title to convoy which was on account of the non-existence of the company owing to its supposed removal from the register and when he wanted the addressee of the notice to make out a, clean title, it means that the Plaintiff wanted that steps be taken for bringing the company back to the register with the aforesaid consequences. A reservation of the right for specific performance under Ex. Q is, therefore, the only thing that is contemplated in Ex. X when he demands of the addressee to make out a clean title. Except for getting specific performance of the agreement there is no purpose served so far as the Plaintiff is concerned in bringing the company back to life. The last sentence of Ex. X wherein he reserves all his, legal remedies must, therefore, be regarded as'' reserving the remedy by way of specific performance as well.

It is thus dear that the contention urged in argument before us that the Plaintiff had abandoned his benefits under the contract to a claim for specific performance cannot be accepted. The contention raised in the Court below be considered which is to the effect that the Plaintiff has repudiated the contract. The repudiation is alleged to have been made in Ex. X and by means of it. The repudiation is on the basis that the contract is voidable for the vitiating circumstances mentioned in the notice. Notwithstanding the existence of these vitiating circumstances, the Plaintiff does not absolutely give up his claim under the contract but he retains them, by demanding the addressee to make out a clean title. Assuming that Ex. X constitutes a repudiation neither Defendant 2 nor the company can avail of that circumstances for more reasons than one. So far as the company is concerned the repudiation has not been accepted by it. On the other hand, the proposal to bring the company back to life and in that manner make out a clean title was accepted by the company, and an application was made to the Court for the restoration of the company. In Ex. BG which is a certified copy of the application, the company relied upon the necessity to implement an arrangement for sale of the cardamom estate of the company as one of the grounds in support of the prayer for restoring the company back to the register.

In paras 4 and 5 of Ex. BG after referring to the notification in the Gazette dated 29-10-1935 published by the Registrar of Joint Stock Companies threatening the striking off of the company from the register within 3 months, it is stated that the company was not aware of that notice raid it was due to ignorance thereof that steps were not taken to avoid the striking off. Paragraph 5 states that the first information the company received about such notice was only from a registered notice issued to the company by one of the intending purchasers of the estate dated 14-3-1936 and delivered the next day. Learned Counsel for the Appellant depended upon the expression "one of the intending purchasers" and contended that the expression being general may apply to any purchaser and that it need not necessarily apply to the Plaintiff. In the first place there is no evidence in this case of any other intending purchaser. Further the reference to the date of the notice namely 14-3-1936 which gave information to the company as to the striking off should certainly be to that of Ex. X because had there been any other notice sent to the company by any other intending purchaser, it would have been produced before the Court. It is thus clear that the purpose expressly mentioned as sought to be achieved by the restoration back of the company to the register in Ex. EG was to implement the arrangement under Ex Q. It is stated in the application that the arrangement for sale would fall through but for the restoration sought. It is thus clear that the company has not merely not accepted the repudiation under Ex. X but has accepted the other alternative given in Ex. X of making out a clean title. That clean title was made on 2-11-1111 when the order for restoration was passed by the Court. Having thus induced the Court to pass an order restoring the company back to file, wiping of the effect of its being removed from the register, it is not proper, assuming that it is within the power of the company, to refuse to implement Ex. Q.

After bringing the company back to life, the company, without doing that for which it was so restored, transferred the property to Defendant 2 under Ex. IV, as already mentioned. In Ex. IV mention is made of Ex. Q. It is significant that no fault is attributed to the Plaintiff in the matter of non-completion of the transaction of sale pursuant thereto but it is only mentioned that the Plaintiff not having completed the transaction of transfer, the property is assigned in favour of Defendant 2. This part of Ex. IV has a bearing upon the question that we are considering as regards the repudiation of the contract by the Plaintiff. That the repudiation was not accepted is further clear because it is stated in Ex. IV that the only reason for transferring the property in favour of Defendant 2 was that'' the Plaintiff had not until then taken the assignment. Upon this point the argument urged by learned Counsel for the Appellant is that a time of two months is fixed for the completion of the transaction in Ex. Q and that time is the essence of contract. This contention must be repelled. In a contract for sale of immovable property the presumption is that time is not the essence. No doubt it is competent for the parties by contract I to make time the essence. That has not been1done here.

The facts mentioned above will show that on the due date the company stood struck off from the register. It was due to no fault on the part of the Plaintiff. The company may also not be at fault because though the Registrar of Joint Stock Companies issued the notification it was not served on account of a change in the office of the company from Travancore to a place in Madura as indicated in Ex. BG. For no fault of the contracting parties, the transaction was not effected within the period mentioned in Ex. Q. Both parties are agreeable to have the defect which stood in the way of the implementation of the transaction, being cured. The Plaintiff made the offer in Ex. X to cure the defect, the company accepted it and applied for it as per Ex. BG. There was thus the concurrence of both the parties to carry out Ex. Q after the curing of the defects. The defect has been cured though not within the time fixed in Ex. Q. The result was that though nothing could be done within the time contemplated in Ex. Q for no fault of either party, the contract could be completed and the transfer effected on and after 2-11-1111 when the company was restored to the register by the order of the court. There is no case of any time being fixed for the completion of the transaction subsequent thereto. It is thus a case where there is a contract for sale of immovable property without fixation of any time for the completion of the transaction. The second ground on which learned Counsel for the Appellant relied cannot also therefore avail him.

The last ground urged is that the claim is barred by limitation. The Plaintiff claims to have the benefit of Section 14, Limitation Act, to save the claim from being barred. He wants the exclusion of the period of pendency of Company Petition No. 16/1114 filed by him in the Court below that is the period between 27-7-1114 and 12-1-1117. If this period be excluded it is not contended that the suit will be beyond time. The contention urged is that this period cannot be excluded. The learned Judge found in favour of the Plaintiff and held that the claim is not barred by limitation as the Plaintiff was prosecuting the identical claim by means of that petition as in the litigation and when he did not succeed for defect of jurisdiction he lost no time in coming to the Court with the suit. The contention urged is that u/s 217, Travancore Companies Act, corresponding to Section 216 of the Indian Act, it is beyond the competence of the Court to grant relief to a claimant under an agreement to sell immovable property by a company under liquidation, that this point is clear and therefore the Plaintiff could not have been acting bona fide in resorting to the Court. It is further urged that a similar application filed on behalf of the company namely, Company Petition No. 12/1113, already referred to, having been dismissed, the second attempt to induce the Court to interfere, cannot be bona fide. The Court has got wide and varied powers even in a case of voluntary liquidation. It may be the Court may not interfere and pass orders affecting the rights of a third party in the absence of that third party or except at the instance of that third party. It may have been supposed that notwithstanding the dismissal of Company Petition No. 12/1113, the Court might give relief to the Plaintiff in his own application. The wording of Section 216 , Indian Companies Act is not such as to make it absolutely clear that no relief should in any event be granted to the Plaintiff by the Court acting under that section. We are satisfied that the Plaintiff was prosecuting with due diligence the claim that he prosecutes in this suit by presenting company petition No. 16/1114 and that he is entitled to have the exclusion of the period of pendency of that petition before Court. Even apart from the exclusion of the aforesaid period, in our judgment, the claim is not barred by limitation because the period of limitation for a suit for specific performance is three years from the date fixed for the performance or when no time is fixed the date when the Plaintiff has notice that the performance has been refused. As already mentioned, in the events that happened in this case, the agreement in question though started with fixation of a period for the completion of the transaction became one without such period on account of the peculiar facts and circumstances already explained and the contract, therefore, became one in which no time fixed for its performance. There is no case or evidence that there was any refusal of performance by the company or that notice of any such refusal was given to the Plaintiff at any time. For this reason we hold that the claim of the Plaintiff is not barred by limitation.

For the foregoing reasons, A.S. 286/22 should be dismissed with costs.

There is a memorandum of appeal presented by the Plaintiff-Respondent as regards his costs in the Court below which that Court disallowed. There is no reason mentioned in the judgment of the Court below why the successful Plaintiff should have been deprived of his costs. The Court below in one portion of the judgment remarked that Defendant 2 is a speculator going in for this purchase without payment and with a view to take the risk of a litigation. That will be a ground, if at all, for saddling him with costs and not for exonerating him therefrom as was done by the lower Court. We, therefore, allow the memorandum of objections with costs.

A.S. 285/1122: This arises out of a suit filed by Defendant 1 in the suit which led to A.S. 236/1122. It is obvious from our judgment in A.S. 236/22 that this suit was altogether unnecessary and uncalled for. The only reason mentioned for setting aside the transfer in favour of Defendant 2 is that he has not taken steps to secure possession from the Plaintiff in the earlier suit. This is no ground for setting aside the deed of transfer in favour of Defendant 2. When relief was asked for by the Plaintiff in the earlier suit to which the company as also the ''subsequent purchaser (with notice of the contract) are parties, the rights of the parties must be and could be adjusted in that very suit and the second suit was not called for. The suit, therefore, has to be dismissed. The Court below in decreeing the suit gave certain directions in respect of the deposit of the balance purchase money by the Plaintiff in the earlier suit. These directions will be regarded as having been embodied in the judgment of the earlier suit and the relief given will be on condition of his paying the balance purchase money payable by him. We are told that the Plaintiff has deposited in Court the balance purchase money pursuant to the directions contained in the judgment of the Court below. With these observations A.S. 225/1122 must be allowed with costs to be paid by the company to the Appellant. The company will also pay the costs of both the Defendants in the Court below, here and in that Court.

The appeal having been permitted to be filed in ''forma pauperis'' the Appellant is directed to pay the Court fee due to the State.

There was no appearance before us on behalf of the Liquidator. The memorandum of cross objection filed by Respondent 1 company is dismissed.