Vairavan vs K.S. Vidyanandam and others

Abdul Hadi, J.—The plaintiff is the appellant in this first appeal against the judgment and decree in O.S. No. 466 of 1981 on the file of the

Subordinate Judge, Madurai. The said suit is for specific performance of Ex. A.1, sale agreement dated 15-12-1978 filed by the appellant against

the defendants. The Court below has negatived the relief of specific performance, but has granted the return of advance amount paid, of Rs.

5,000/- with interest paid, under the said agreement; (total sale consideration there on was Rs. 7,60,000/- and the property agreed to be sold was

a house in Madurai). Since the specific performance relief has been negatived by the Court below, this appeal has been filed by the plaintiff,

claiming the said relief.

The plaint allegations are briefly as follows:-- The defendants who owned the above said suit property agreed to sell it for Rs. 60,000/- to the

plaintiff and accordingly executed the sale agreement dated 15-12-1978. As per the sale agreement, the defen-dants agreed to sell the same within

six months free of all encumbrances and hand over vacant possession of the property at the lime of the sale. The defendants also received a sum of

Rs. 5000/- on the same day as advance from the plaintiff. The plaintiff has been always ready to perform his part of the contract althrough. The

plaintiff is sufficiently rich and has been always ready and willing to pay the balance of Rs. 55,000/- and to purchase the stamp papers and meet

out the registration expenses. The plaintiff has got command to pay the sale price at any time. Though the abovesaid six months'' time was fixed, it

was never agreed that time was of essence of the contract. The property agreed to be sold is in fact in occupation of a tenant. Whenever the

plaintiff approached the defendants, the plaintiff expressed his willingness and asked the defendants to receive the balance and execute the sale

deed. But, the defendants had been stating that the tenant had not vacated and had been asking for time and that as soon as the tenant vacated,

they Would execute the sale deed. Though as per the terms of the sale agreement, the defendants had agreed to hand over vacant posses-sion, the

plaintiff is prepared to accept attornment from the tenant and is prepared to take eviction proceedings against him if necessary after the sale is

completed. The plaintiff has sent registered notice to the defendants on 11-7-1981, calling upon them to execute the sale deed, but, though they

have received the notice on 13-7-1981, had sent a reply-dated 27-7-1981, containing false allegations. The allegations in the said reply notice that

time was agreed to be of essence of the contract, that the defendants were ready and willing to perform their part of the contract and that the

plaintiff wanted time, are all falsehood. The further contentions in the reply notice that the plaintiff could not arrange for the sale deed in time, that

the plaintiff stated that he would give up his claim for the refund of advance and that the plaintiff agreed to give up his claim for specific

performance are all false. Similarly, the contention therein that the tenant is relative of the defendants and was prepared to vacate at any time is also

false. Even now the suit building is in the occupation of the tenant.

The allegations in the written statement are briefly as follows:-- The sale agreement stipulated that if the plaintiff failed to obtain the sale deed

duly executed within the abovesaid period of six months, he should not demand back the deposit of Rs. 5,000/- and that if the defendants failed to

execute the sale deed, they should repay the deposit of Rs. 5,000/- and another sum of Rs. 5,000/-The building is in the occupation of the tenant

by name P.R. Subramanian, who is a close relation of the defendants and he is always prepared to vacate at any moment. However, as the plaintiff

required six months'' time of arranging the sale price and as the defendants wanted to sell the suit house for the purpose of purchasing an other

house property in Madras, six months'' specific time was stipulated only to enable the plaintiff to arrange the sale price and obtain the duly

executed sale deed from the defendants. The sate price has been increasing day by day and the time stipulated in the sale agreement was

absolutely of the essence of the contract, and any delay would cause much loss to the defendants. The defendants had always been ready and

willing to perform their part of the contract and handover vacant possession. But. the plaintiff could not arrange for the sale price and obtain the

sale deed. Hence, the plaintiff expressed his inability and unwillingness, to complete the sale transaction and ;tlso agreed to forego the advance

amounts as per the terms of the agreement. The defendants had also entered into a sale agreement on 4-1-1979 with one Janaki Animal at.

Madras for the purpose of purchasing a house property at Madras for Rs. 82,500/- and also paid an advance of Rs. 5000/- on the same day,

agreeing to, obtain the registered sale deed. The defendants wanted to invest the sale proceeds of the suit property in purchasing the house

property at Madras as the defendants 1 and 2 are the permanent residents of Madras and for this reason, alone, the defendants proposed to sell

the house. As the plaintiff failed to complete the sale transaction and committed gross breach of the sale agreement, the defendants could not

complete their sale transaction at Madras with the said Janaki Ammal. The market price of the suit property has increased nearly three times and

that has now prompted the plaintiff to come forward with the suit. The sum of Rs. 5,000/- paid by the plaintiff under the sale agreement was only

as a security deposit for the proper performance of the contract by the plaintiff and the plaintiff has only to lose the amount if he commits breach.

The allegation that the plaintiff is sufficiently rich and has been ready and willing to pay the balance sale price, etc, and that the plaintiff has got

command to pay the sale price at any time, are all false. The defendants never represented to the plaintiff that as soon as the tenant vacated they

would execute the sale deed. The allegation that the plaintiff is now ready to buy the suit building with the tenant in possession thereof and with

attornment from the tenant in favour of the plaintiff, clearly show the speculative nature of the plaintiff due to the increase in the value of the

property. The reply to the suit notice contained true allegations. As per the terms of the sale agreement, the time for performance expired as early

as 15-6-1979. But the plaintiff was keeping quite up to 11-7-1981 for issuing the suit notice and even thereafter the suit was filed only on 16- 10-

1981. There is long delay and as per the very terms of the agreement, the plaintiff has to forego the return of the advance amount. Thus, it is

evident that the plaintiff has abandoned his claim under the contract. The defendants incurred heavy damages due to the breach committed by the

plaintiff and they could not purchase the coveted property at Madras, The plaintiff is. not entitled to either the relief of specific performance or the

relief of return of advance amount.

The Court below framed the following inssues;--

(1) Whether the plaintiff was ''ready and willing to perform his part of the contract ?

(2) Whether time was of the essence of the contract ?

(3) Whether the plaintiff has committed breach of contract ?

(4) Whether the advance of Rs. 5000/-paid by the plaintiff pursuant to the contract has been forfeited ?

(5) Whether the plaintiff could claim the suit amount with interest ?

(6) To what relief is the plaintiff entitled ?

The plaintiff has examined himself as P.W. 1 and has marked Exs. A. 1 to A.35. On the side of the defendants, the 1st defendant was examined

as D.W. 1 and the abovesaid tenant P. R. Subramanian was examined as D.W. 2 and D.W. 3 is the broker relating to the abovesaid defendant''s

sale agreement for buying the abovesaid Madras property.

On issue No. (2) the Court held that time is not of the essence of the contract. On issue No. (1) it held that the plaintiff was ready in view of the

fact that he was sufficiently rich, but it held that he was not willing to perform his part of the contract. One reason for coming to the said conclusion

is that only after long delay, Ex. A2 notice dated 11-7-1981 was issued by the plaintiff, calling for performance of the contract by the defendants.

In this regard, another reasoning of the Court below is that since now the plaintiff has come forward to purchase the suit property, even without

defendants vacating the tenant, the plaintiff could have resorted to the same course much earlier and need not have delayed in demanding

performance of the contract from the defendants. The third reasoning of the trial Court in this regard is, the plaintiff has purchased two other similar

properties after the sale agreement under Ex. B. 1 sale deed dated 25-5-1979 for Rs. 35,000/- and Ex. A.22 sale deed dated 1-6-1981 for

Rs.33,000/-. For all these reasons, the Court below held that not only the plaintiff was not willing to perform his part of the contract, but he has

also abandoned the contract. Then, on the other issues, the Court below held that the abovesaid Rs. 5,000/- was only advance, and not earnest

money and it should be returned to the plaintiff with interest. Accordingly the above-said decree was granted.

The specific performance relief having been negatived by the Court below the present appeal has been filed. The defendants have sold the

property to the 4th respondent in this appeal and hence the said 4th respondent was impleaded in this appeal.

Learned Counsel for the appellant made the following submissions :-- The three reasons given by the Court below for coming to the conclusion

that the plaintiff was not willing to perform his part of the contract and the plaintiff has also abandoned the contract, are unacceptable. In this

regard, the learned counsel took us to the relevant pleadings and evidence and also cited several decision, which we shall presently deal with.

For all the respondents, including the 4th respondent, same counsel appears in this appeal. He makes the following submissions : Though

generally time is not of essence of the sale agreement of an immovable property, the inference to be drawn from the very terms of the contract is

that it is of the essence. The terms also suggest that if the performance is not done within seven months stipulated therein, the contract itself comes

to an end. Other circumstances are also there for holding that time is of essence of the contract. Further, the plaintiff was neither ready nor willing

to perform his part of the contract. Even assuming that the plaintiff was having properties, he was not having the necessary liquidity of funds and

hence, he could not be considered that he was ready to perform the contract. The reasons given by the Court below for coming to the conclusion

that the plaintiff was not willing to perform his part of the contract and for coming to the conclusion that the plaintiff has abandoned the contract are

sound. Further, there is also no sufficient pleading regarding the abovesaid willingness and readiness continuosly, as per Section 16(c) of the

Specific Relief Act, coupled with the relevant rules and (sic) in the Code of Civil Procedure. He also cited several decisions in support of his

contentions.

We shall now consider the rival submissions in the light of the pleadings, evidence and decisions relied on. Regarding the first question whether

for this sale agreement time was of the essence of the contract, we must first of all point out that it is settled law that the presumption in such

agreements to sell immovable properties in that is not of the essence of the contract. The relevant observation in Gomathinayagam Pillai and Others

Vs. Pallaniswami Nadar, is as follows :--

Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable; it may also be inferred from the nature of

the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a

contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express

stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to

sale of immovable property it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written

agreement of a clause imposing penalty in case of default does not by itself evidence on intention to make time of the essence"".

One of us (Abdul Hadi, J.), has also followed the said Supreme Court decision in Y.A. Kader Vs. Muthulakshmi Ammal (deceased by L.R''s), .

In the present case, admittedly, there is no express stipulation in Ex. A. 1 sale agreement saying that time is of the essence of the contract. No

doubt it says that within six months from the date of the agreement, that is, before 15-6-1979, the performance must be completed by executing

and registering the sale deed and paying the balance price. Ex. A. 1 also stipulates that if within the abovesaid six months period, the plaintiff-

purchaser fails to carry out his part of the contract, he cannot get the advance of Rs. 5,000/- paid and if the vendors-defendants fail to perform

their part of the contract, within the said perioc, they must, apart from returning the abovesaid sum of Rs. 5000/- received from the plaintiff, also

give another sum of Rs. 5,000/-. But, this stipulation would not make time of the essence of the contract, even according to the Surprcme Court

decision. Learned Counsel for the respondent contends that since the suit agreement was entered into in order to buy a property at Madras, in suit

agreement time must be considered of essence. In this connection Ex. B. 2 sale agreement for purchase of the abovesaid Madras property was

relied on. But, this contention also has no merit since Ex. B. 2, which is dated 4-1-1979 stipulates that within three months thereof the sale should

be completed. In other words, the expiry of the abovesaid three months'' period is even before the expiry of the abovesaid six months period

stipulated in Ex. A. 1 agreement dated 15-12-1978. Further, even in Ex. A. 3 dated 27-7-1981, the reply to the suit notice Ex. A. 2, there is no

such plea that in order to purchase the abovesaid Madras property, the suit agreement was entered into. Therefore, the contention of the said

learned Counsel has no merit at all and the Court below also did not accept such contention put forward before it.

Learned Counsel for the respondents no doubt relied on Kamal Rani Vs. Chand Rani and Another, . But, that decision turned very much on

the peculiar facts therein. In the light of the facts therein, no doubt it was held that the stipulation, in the sale agreement that payment of a major

portion of sale price, viz., Rs. 98,900/- within a stipulated time, was of the essence of the contract. The facts there were as follows ;--The vendor

wanted the sale price to be paid within a week. But, at the request of the vendee, the period of ten days was stipulated in the agreement of sale

and it was specifically provided in the sale agreement that the vendee must pay the same to the vendor ""within a period of ten days only"". Further, it

is also provided in another term of the sale agreement therein, with reference to the balance sale consideration of the sale price that if the vendee

fails to pay the same and get the sale deed executed and registered within the specified period, the earnest money of Rs. 30,000/- shall stand

forfeited to the vendor and the said agreement would be ""deemed null and void"". There, the Court also points out that use of the word ""only"" as

stated above was because the vender had to invest Rs. 1 lakh in a particular business and indeed wanted the money within one week. Taking these

features and other features into consideration, the Court in that decision, came to the abovesaid conclusion.

11A. But, as already stated, the facts are different in the present case. No doubt, when the abovesaid Delhi case was subsequently taken up to

Supreme Court in Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., the Supreme Court has no doubt approved the

abovesaid reasoning of the Delhi High Court in relation to the use of the abovesaid term ""only"" as stated above. Even in that context, the

observation of the Supreme Court is as follows :--

It is a well accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is

a presumption against time being the essence of the contract. It has to be ascertained whether under the terms of the contract the parties named a

specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable

time. An intention to make time the essence of the contract must be expressed in unequivocal language.

We are unable to hold in the light of the terms of the present sale agreement or otherwise that the intention of the parties was to niakc time of the

essence of the contract in the present case.

Further, no doubt, in this connection learned counsel for the respondents contends that if within the abovesaid six months, the plaintiff defaults

to perform his part of the contract in paying the balance sale price, etc., the contract itself comes to an end as per the very terms of the contract.

But, we are unable to agree with this contention, particularly because Ex. A.1 also provides that before registration of the sale deed, the defendants

have to vacate the tenant occupying the suit property and handover the key of the vacant suit house to the plaintiff. Admittedly, in the present case,

the tenant (D.W. 2) has not vacated even now. No doubt, the contention of contesting respondents is that D.W. 2 was only a close relation of the

defendants and he was always ready to vacate the house whenever demanded. But, this later facts, viz., that he was ready to vacate whenever so

demanded, is not borne out by evidence. D.W. 2, the tenant himself, though deposed that he agreed to vacate the said house, has further stated

that he was in the look out for another house for occupation for about two or three months from January, 1979. He further adds in his deposition

that in Madurai, ordinarily no house is vacant. No doubt, he says further that in March, he got another house, but, there, ten months advance was

demanded by the Landlord, but that advance was not given by him and hence he did not occupy that house. He also deposed that he could not get

any other house and, therefore, he did not vacate the suit house and by then the mohth of July or August came. Then, D.W. 1, the 1st defendant

told him not to vacate and thereafter there was no effort to vacate him and rent was also increased. All these clearly show that the defendants also

did not perform their part of the contract. Further, in the above context, it cannot also be said that the contract has come to an end by the expiry of

the abovesaid seven months. By no stretch of imagination, it can be said that time is of the essence of the contract and the conclusion reached by

the Court below is perfectly correct.

Regarding the other contention that the plaintiff was not ready and willing to peform his part of the contract and he has abandoned the contract

also, we are unable to agree with learned counsel for the respondents. In this regard, one of his submissions was that there was no sufficient

pleading by the plaintiff regarding his readiness and willingness. No doubt Section 16(c) of the Specific Relief Act provides that performance of a

contract, cannot be enforced in favour of a person, who fails to aver and prove that he has performed or has always been ready and willing to

perform the essential terms of the contract, which are to be performed by him, other than the terms, the performance of which has been prevented

or waived by the defendant. Further Explanation (ii) therein also says that the plaitiff must aver performance of, or readiness and willingness to

perform, the contract according to the true consideration. In the present case, following are the relevant pleadings in the plaint;--

The plaintiff has been always ready and willing to perform his part of contract all through. The plaintiff is sufficiently rich and he has been always

ready and willing to pay the balance of sale price of Rs. 55,000/-(Rupees fifty five thousand only) and to purchase stamp papers and to meet out

the registration expenses. The plaintiff has got command to pay the sale price at any time"".

(Emphasis supplies)

In our view, this squarely satisfies the requirement stipulated in Section 16(c) of the Specific Relict Act. But, learned counsel for the respondents

drew our attention to Form No. 47 in Appendix A of Civil Procedure Code, which gives a model Format of plaint far seeking specific

performance. There, in paragraph 3, the said form uses the following expression;--

The plaintiff has been and still is ready and willing to specifically to perform the agreement on his part, of which the defendant has had notice.

The said learned Counsel emphasizes that this phraseology has not been adopted in the plaint. He emphasizes the words ""and still"" in the abovcsaid

passage. Further, according to him, the plaitiff must also say how actually he is ready and willing, but that it is not stated in the plaint In this context,

the said learned counsel also relies on Viswanathan and Others Vs. R. Lakshmi Ammal (deed.) and Others, . But, we see no merit in this argument

of Learned Counsel. First of all, Order 6, Rule 3, C.P.C., while referring to the forms in Appendix A says, ""the forms in Appendix A when

applicable, and where they arc not applicable forms of the like character, as early as may be, shall be used for all pleadings"", Further, in view of the

use of the words ""always"" and ""althrough"" in paragraph 6 of the plaint, the requirements u/s 16(c) of the Specific Relief Act, has been complied

with, and there is no necessity to add also how actually the plaintiff was ready and willing. That is a matter of evidence only. Viswanathan and

Others Vs. R. Lakshmi Ammal (deed.) and Others, is only a case where there was no averment at all in the plaint stating that the plaintiffs therein

were always ready and willing to perform their part of the contract. No doubt, in that context this Court, after referring to Section 16(c) of the

Specific Relief Act, incidentally also mentioned about Order 6, Rule 3, C.P.C. and Form No. 47 of Appendix A, particularly paragraph 3 therein.

The said decision, in no way advances the case of the respondents,

Further in Nallaya Gounder and another Vs. P. Ramaswami Gounder and another, , this Court held that where in a plaint u/s 16(c), besides

stating that the plaintiffs were ready and willing to perform their part of the contract, mention was made of the plaintiffs convening panchayat at

thrice and defendants agreeing to execute the conveyance and later on setting the properties in favour of the third parties it was held that there was

sufficient compliance"" of the requirements of Forms 47 and 48 of Ap-pendix-A of the Code of Civil Procedure.

In Prag Datt Vs. Smt. Saraswati Devi and Another, , it has also been observed thus ;--

The observations of the Supreme Court R.C. Chandiok and Another Vs. Chuni Lal Sabharwal and Others, referred to above, make it clear that

the requirement of Section 16(c) and of Form 47 of Appendix A to Civil P.C. are not to be interpreted narrowly and in a hypcrtechnical manner. It

is the substance of the matter which is of importance. If from the averment made in the plaints and the surrounding circumstances, it is established in

substance that the plaintiff was ready and willing to perform his part of the contract and had remained ready and willing to perform the same

throughout, it would not be proper to non-suit him on a verbal omission here or there. It has to be remembered that Section 16(c) of Form 47 of

Appedix A of Civil P.C. does not provide for booby trap of which an unscrupulous litigant should be allowed to take advantage

Further, in Bijai Bahadur and Others Vs. Shri Shiv Kumar and Another, , which also dealt with a specific performance action, it has been observed

that it is, enough if the relevant forms in Appendix A are substantially complied with. In the present case, also, undoubtedly that is substantial

compliance of the above said Form No. 47 as well as Section 16(c).

Then, coming to the meaning of the abovesaid term ""readiness"" and the other term ""willingness"" we may also refer to Raj Rani Bhasin and

Others Vs. S. Kartar Singh Mehta, , wherein it has been held, by readiness may be meant the capacity of the plaintiff to perform the contract,

which includes his financial ability to pay the purchase price, but for determining his willingness to perform his part of the contract, his conduct has

to be properly scrutinised.

Then, regarding evidence on the above said ""readiness"", learned Counsel for the respondents submits that it is not enough that the plaintiff is

having properties, but there must be proof that he was having liquidity of funds. In other words, he points out that there is documentary evidence

showing that the plaintiff was having any bank balance or liquid cash with him for payment of the balance sale price,. But, here also, we are unable

to appreciate the above-said contention of learned counsel for respondents. Exs. A. 4 to A. 19 and Exs. A. 23 to A. 35 have been filed to show

the resources available to the plaintiff. As the trial Court also has pointed out, he is the proprietor of Lalitha Papers Stores and is doing business for

several lakhs and he is an Income Tax assesses. That apart, it is also in evidence, as already indicated that he has purchased properties, one in

1979 for Rs. 35,000/- and another in 1981 for Rs. 30,000/- and for those purchases he has paid the sale consideration in cash. It is not necessary

that he should necessarily have sufficient bank balance or cash balance at the relevant time for coming to the conclusion that he has been always

ready to perform his part of the contract. It is enough if he could command credit in the market. Taking into account the abovesaid features, there

can be no doubt that he could command such a credit all through the relevant period, and the decision of the Court below in this regard, is

perfectly correct.

Then, regarding the abovesaid willingness also, we agree with the contention of learned counsel for the appellant that the three reasons given by

the Court below for coming to the conclusion that the plaintiff was not having the above said willingness and that he has also abandoned the

contract, are not acceptable. Simply because, two other properties have been purchased under Exs. B. 1 and A. 22, it cannot be said that the

plaintiff is not wilting to buy the present suit property, pursuant to the suit agreement. In fact, when Ex. B. 1 was marked on the side of the

defendants, it is the plaintiff who volunteered to mark Ex. A. 22 also to show that he was having greater abilities to purchase such properties, one

for Rs. 35,000/- and another for Rs. 30,000/-. Further, it cannot be said that simply because the plaintiff has come forward to show some

indulgence to the defendants, after certain lapse of time, in accepting to purchase the property even without the defendant vacating the tenant

therein, it cannot be said that he ought to have shown such indulgence much earlier or within the abovesaid six months period itself and ought to

have so demanded performance pf the contract on the part of the defendants and filed the suit much earlier.

17A. Further, a mere delay in coming to Court, cannot negative the specific performance relief, provided the plaintiff has come to Court within the

period of limitation prescribed under Article 54 of the Limitation Act (that is, three years from the date fixed for specific performance) vide --

Arjuna Mudaliar Vs. Lakshmi Ammal and Others, .

17B. Learned Counsel for the respondent was emphasizing the conduct of the plaintiff in not having demanded specific performance by the writing

any letter or sending any notice till Ex. A. 2 notice was issued. According to him this conduct would disentitle the plaintiff from claiming specific

performance, But as already mentioned that by itself would not debar him from getting the relief. That apart, P.W. 1, the plaintiff has deposed

(Vernacular matter omitted--Ed.)

No doubt, as against this version 1st defendant, as D.W. 1 has deposed

(Vernacular matter omitted --Ed.)

But, taking into account the evidence given by D.W. 2, the tenant, which has been referred to in paragraph 12 above, there is more scope for

believing the version of P.W. 1 rather than of D.W. 1. Further, the defendants also could have after vacating the tenant, demanded in writing from

the plaintiff performance of his part. But, they have not chosen to do so.

17C. It has also been held in Madamsetty Satyanarayana Vs. G. Yellogi Rao and Others, that mere delay without such conduct on the part of the

plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief of specific performance. There it has also

been held that proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the plaintiff, to the relief of specific

performance, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. It has been further held

therein that it is not possible or desirable to lay down the circumstances under which the Court can exercise its discretion against the plaintiff. But,

they must be such that the representation by, or, the conduct or neglect of, the plaintiff, is directly responsible in inducing the defendant to change

his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief. All these circumstances

indicated for the Court not exercising its discretion in favour of the plaintiff, do not exist in the present case. The decision in Kantilal C. Shah Vs.

A.G. Devarajulu Reddiar, relied on by the Court below has no application to the present case, since in that case, the suit was filed after five years,

that is, beyond the period of limitation proscribed.

17D. Learned counsel for the respondents relies on the decision in Bhageran Rai and Others Vs. Bhagwan Singh and Others, . But, that decision

turned on its facts. No doubt that decision also dealt with a suit for specific performance. But, in that case, the sale agreement fruitioned into a sale

deed, which was executed, but not registered, since the defendant vender was refusing to get it registered. The said sale deed itself was

propounded as a contract of sale and the suit was laid for its specific performance nearly 21/2 years after the execution of the said sale deed and

there is no satisfactory explanation for the plaitiffs inaction for hearing 2 1/2 years. In that context, the Court in that case pointed out the following

observation of an earlier Bench decision of the same Patna High Court in Rameshwar Prasad Sahi Vs. Mt. Anandi Devi and Others, ;--

Where B execute a sale deed in favour of A but refuses to get it registered two remedies are open to A. It is open to him to apply for complusory

registration of the document u/s 23, Registration Act and in case the prayer for registration is refused it is open to him to bring a suit u/s 77 of the

Act. It is also open to A to have recourse to the fuller and more comprehensive remedy provided for a suit for specific performance of contract for

sale. These two remedies are independent and it is open to A to follow either of these courses for obtaining relief. But the failure of A to take any

kind of action for a period of about twelve months is tantamount an abandonment of contract and waiver of his rights to sue for specific

performance. Delay of this kind is always fatal to the plaintiff in a suit for specific per formance which is a discretionary relief.

In Rameshwar Prasad Sahi Vs. Mt. Anandi Devi and Others, the delay was thus 12 months and in Bhageran Rai and Others Vs. Bhagwan Singh

and Others, the delay was nearly 2 1/2 years. However, it must be noted that since the sale deed was executed in both the abovesaid cases, there

was another remedy open to the plaintiff as soon as the defendant refused to register the sale deed. That remedy was for compulsory registration

u/s 23 of the Registration Act. But, that was not resorted to by the plaintiff, but much later, the more comprehensive remedy of specific

performance was sought for in the suit. In such a contact only it was held in both the abovesaid two decisions of Patna High Court that delay of the

said kind was fatal to the suit for specific performance. The delay in the present case is not of that kind. Hence the said decision are distinguishable

on facts and they have no application to the present case.

No doubt, learned Counsel for the respondents, while emphasizing that there must be continuous readiness and willingness, relied on P.G.

Sinha (Panchu Gopal Singh) Vs. Commodore K.C. Chatterjee and others, where it was held that such readiness and willingness must be till the

date of hearing and on Smt. Sandhya Rani Sarkar Vs. Smt. Sudha Rani Debi and Others, where it was held that such readiness and willingness

must be till the date of filing of the suit for specific performance. But, in the light of the above features, it cannot be said that the plaintiff was not so

ready and willing till the date of filing of the suit or till the date of hearing.

Simply because the plaintiff chose to issue Ex. A. 2 notice only on 11-7-1981 and did not make such demand earlier, within the the abovesaid

six months'' period which came to end by 15-6-1979 or immediately thereafter, it cannot be said that the plaintiff was not ready or willing to

perform his part of the contract.

On the same reasoning, it cannot also be said that there was abandonment of the contract by the plaintiff. Regarding this abandonment, no

doubt there is plea in paragraph 17 of the written statement thus :--

Further, there is absolutely no valid reason for such an abnormal delay of nearly three years. As per the very terms of the agreement the plaintiff

has to forego the return of the advance amount. Thus it is evident that the plaintiff has abandoned his claim under the contract.

Thus, in view of the abovesaid term ""thus"" used after mentioning about the abovesaid delay of nearly three years, it has to be taken that the alleged

abandonment was to be inferred because of the said delay and not because of any other reason. In other words, the allegation that two other

properties were purchased by the plaintiff (under Exs. B. 1 and A.22, as stated above) and the allegation that the tenant in the property did not

vacate, are not to be taken as reasons for the alleged abandonment as per the written statement.

At any rate, it is very significant to note that the abovesaid allegation of abandonment does not at all find a place in Ex. A.3, reply notice dated

27-7-1981. In fact it is to be stated that what is stated in Ex. A.3, rather goes against the abovesaid allegation. Further D.W.1, gives a different

reason for the alleged abandonment. What he says is :--

(Matter in vernacular omitted-- Ed.)

So, in the evidence D.W. 1 states that the reason for the alleged abandonment is that he has purchased another house and he could not arrange for

the required funds. Such a reason has not been stated in the written statement, as already noted. Further, if really, for any reason, the plaintiff

abandoned the contract, the 1st defendant could have insisted the plaintiff to put it in writing. In fact, even in the written statement, it is not stated

when actually was the alleged abandonment. Further, the written statement does not say to whom actually the abovesaid abandonment was

communicated. Therefore, the story of abandonment cannot be believed at all.

Further, we may also point out that in Netyam Venkataramanna and others Vs. Mahankali Narasimhan (died), , it has also been held following

the earlier Division Bench judgment in Abdul Hakeem Khan Vs. Abdul Mannan Khadri, , that from a long delay, without anything further, the

abandonment of rights cannot be presumed. In Netyam Venkataramanna and others Vs. Mahankali Narasimhan (died), the suit was filed on the

last date of limitation and yet it was observed that there was no delay and that the plaintiff therein had not abandoned his rights for specific

performance under the agreement.

In the view we have taken, there is absolutely no scope for any application of the decision in Kailash Chandra Bhoumik v. Bejoy Kanta Lahiri

Chowdhury, (1919) 23 CWN 199 : AIR 1919 Cal 837, relied on by learned Counsel for the respondent since it had also turned on its own facts,

which are different from the present one.

Then regarding the question whether the abovesaid sum of Rs. 5,000/- paid on the date of the sale agreement, it is clear to us that it is only

advance, and not earnest money. In fact in the view we have taken, there is no necessity to deal with the said question at all.

Insofar as the 4th respondent, the subsequent purchaser is concerned, the law is clear and well settled that his purchase will be affected by lis

pendens, even though the said sale to him was after the dismissal of the present suit. It has been held in several decisions including Settappa

Goundan v. Muthla, ILR (1908) Mad 268, that even after the dismissal of the suit, a purchaser is subject to lis pendens, if an appeal is afterwards

filed.

In the result, the judgment and decree of the trial Court are set aside, the suit is decreed for specific performance as prayed for and the appeal

is allowed with cost''s throughout. Time for payment of balance of sale consideration is, one month. Time for executing the sale deed is, one month

thereafter.

Appeal allowed.