Appeal No 205 of 1956
Appeal from the judgment and decree dated May 26 1954 of the Calcutta High Court in Appeal from Original Decree No 127 of 1950
580 D N Mukherjee for the appellants
N C Chatterjee and R B Biswas for respondents Nos
1a and 2 1961
January 25
The Judgment of the Court was delivered by KAPUR J
This is an appeal against the judgment and decree of the High Court of Judicature at Calcutta
The appellant was the defendant in the suit out of which this appeal has arisen and respondent No 1 was the plaintiff and the second respondent was a proforma defendant
The facts of this case are these On February 4 1941 the respondent sold the property in dispute to the appellant for a sum of Rs 10000
On February 10 1941 there was an agreement for reconveyance within a period up to February 10 1943 for a sum of Rs 10001
The relevant clause of this agreement was the third clause which was as follows   Clause 3
The purchase shall be completed by the purchasers within two years ie to say on or before the 10th day of February 1943 time being the essence of the contract
If the purchasers shall on or before the 10th day of February 1943 pay to the vendor a sum of Rs 10001 the vendor shall at the cost of the purchasers execute such conveyance as may be necessary for conveying and transferring its right title and interest in the said property free from encumbrances if any created by it
 On November 26 1942 the solicitor for respondent No 1 wrote a letter to the appellant stating that that respondent was ready and willing to have the purchase completed as early as possible on payment of Rs 10001
Along with that letter a draft conveyance was sent for approval but all this was subject to the result of a search as to the encumbrances if any created by the appellant
On November 30 1942 the solicitors for the appellant company wrote back saying that immediate arrangements should be made for giving inspection of the agreement of sale on which the respondents were relying as the appellant was unable to trace the copy of the said agreement from its record
581 Again on December 11 1942 the respondent s solicitor sent a letter stating   My client is very eager to complete the purchase and the full consideration money therefore is lying idle in his hands awaiting the return of the relative draft conveyance as approved by you on your clients  behalf
 To this the reply of the appellant s solicitors dated December 18 1942 was  Our clients deny that there was any concluded or valid agreement for sale with your client or with any other person in respect of the above premises On June 10 1943 respondent No 1 filed a suit for specific performance and in the alternative for redemption on the footing that the transaction was in reality a mortgage
The trial court dismissed the suit oil May 16 1950 holding that the transaction on the basis of which the suit was brought was not a mortgage but was out and out sale with an agreement for repurchase and as the vendor had not paid the money  punctually according to the terms of the contract the right to repurchase was lost and could not be specifically enforced  and the court had no power to afford any relief against forfeiture of this breach
The plaintiff respondent took an appeal to the High Court and it was there held that the failure on the part of the respondents to actually tender the amount of the consideration does riot bar a suit for specific performance because after the repudiation of the contract by the appellant the tender would have been a useless formality
The appeal was therefore allowed and the suit for specific performance decreed
It is against this judgment and decree that the appellant has come in appeal to this Court
The correspondence which has been proved in this case shows that when the respondent s solicitor called upon the appellant to reconvey the property in dispute to the respondent and also sent a draft conveyance the appellant denied that there was any concluded or valid agreement for sale in respect of the property in dispute
This was a complete repudiation of the contract to reconvey which the 582 appellant had agreed to by cl 3 of the agreement which has been set out above
As the appellant had repudiated the contract and had thus failed to carry out his part of the contract it was open to the respondent to sue for its enforcement
But it was argued on behalf of the appellant that the respondent did not tender the price ie Rs 10001 nor was he in a position to do so and in that view of the matter the respondent is not entitled to get a decree for specific performance
In cases of this kind no question of formal tender of the amount to be paid arises and the question to be decided is not whether any money was within the power of the respondent but whether the appellant definitely and unequivocally refused to carry out his part of the contract and intimated that money will be refused if tendered
The principle laid down in Hunter vs Daniel 1 is applicable to cases of this kind
In that case Wigram V C stated the position as follows  The practice of the Courts is not to require a party to make a formal tender where from the facts stated in the Bill or from the evidence it appears the tender would have been a mere form and that the party to whom it was made would have refused to accept the money  Lord Buckmaster in Chalikani Venkatarayanim vs Zamindar of Tuni 2 accepted this statement of the law and observed  Their Lordships think that that is a true and accurate expression of the law and the question therefore is whether the answer that was sent on behalf of the mortgagee amounted to a clear refusal to accept the money  This principle applies to the facts of the present case also and the question is whether the answer sent on behalf of the appellant amounted to an unequivocal refusal to carry out its part of the contract which in our opinion it was
It was next contended that the offer made by a solicitor is not a proper offer in law and therefore when 1   2 1922 50 IA 41 47
583 the solicitor for the respondent called upon the appellant to execute the documents they were not bound to do so
We are unable to accord our assent to this proposition
The case upon which the Counsel for the appellant relied ie Ismail Bhai Rahim vs Adam Osman 1 in our opinion has no application to the facts and circumstances of this case
It was held in that case that the offer made by a promiser through a solicitor to pay a debt with interest thereon at the date of the offer does not of itself afford a reasonable opportunity to the promisee of ascertaining that the promisor is able and willing to perform his promise
Unless there is something peculiar in the circumstances of that case that case does not lay down good law
It is difficult to see why a tender made through a solicitor who is for that purpose an agent is not a proper tender
In our opinion the High Court rightly held that the respondents were entitled to a decree for specific per formance and we therefore dismiss this appeal with costs
Appeal dismissed


Summary:
The first respondent the then Commissioner of the Corpora tion of Calcutta was after a protracted trial for an alleged offence under section 497 of the Indian Penal Code discharged by the Magistrate under section 2531 of the Code of Criminal Procedure
The Sessions judge on a petition in revision filed by the complainant holding that the said respondent had suborned the complainants witnesses set aside the order of discharge and directed further enquiry by another Magistrate who permitted the complainant to tender further evidence
The respondent moved the High Court in revision and a Division Bench issued a Rule and stayed further proceedings
While the matter was thus pending before the High Court the Corporation of Calcutta by a resolution appointed the three appellants members of a Special Committee which ran as follows   That a Special Committee consisting of Councillors Shri section K Gupta Shri R N Majumdar and Shri section K Roy be set up to enquire into the allegations levelled against certain officials of the Corporation who are alleged to have been taking advantage of their high offices in carrying on business in their own names The Committee will take up only those matters that relate to the Corporation
 Subsequent to the passing of the said resolution the Mayor handed over to the Committee certain papers from a Councillor containing certain allegations against the Commissioner
It was the case of the said respondent that the Special Committee there upon examined the complainant and another and issued to him a notice along with a questionnaire the relevant portions of which were as follows As you probably know we have been appointed to make an enquiry into certain allegations relating to the administration of the Corporation of Calcutta and specially into certain steps taken by you in the matter of assessment and appointments and few order matters we are giving you a synopsis of the cases in which the enquiry is being held and we shall Se glad if you kindly give us some time between 10 a m and 11 a m tomorrow the 16th instant so that we can get the facts from you    461  III a
It is alleged that between 4th January 1956 and 20th September 1957 ie at or about the time when the case under section 497 IPC was being tried you gave appointments to the following persons 1 Anil Koyal 2 jogendra Nath Mondal 3 Ahi Kanta Choudhury 4 Govinda Banerjee 5 Narendra Nath Naskar who are related respectively to Palan Koyal Haradhan alias Haridhan Mondal Tripti Choudhury Thakur Raj Smriti Tirtha and Upendra Naskar who were cited as witnesses in the case
bIt is alleged that about the same time you gave appoint ments to Tarak Nath Day Hardhan Day Pradip Bhaduri Ardharigsu Mondal etc
and condoned the punishment previously inflicted on Dhiren Mondal as they were helping you in conducting your defence in the case
c It is alleged that you were instrumental in securing the appointment of another probable prosecution witness Kamakshya Chatterjee through one M L Ghose against whom a demolition case was pending
 Thereupon the first respondent filed a complaint in the High Court charging the appellants with contempt of the High Court as well as the trial court
The High Court found the appellants guilty and convicted them for contempt of Court
Hence this appeal
Held per Imam and Raghubar Dayal JJ Subba Rao J dissenting that the appellants were not guilty of contempt of Court and the appeal must succeed
It could not be said that the Special Committee had consti tuted itself a court of parallel enquiry with regard to matters in issue either before the trial Magistrate or the High Court
There can be no comparison between the present case and a trial conducted by a newspaper
The Special Committee was directed by the Corporation to enquire into malpractices on the part of its employees necessarily including unworthy appointments and the ascertainment of the motive could only be incidental to the main purpose of the enquiry and could not lead to the conclusion that the Special Committee was holding a parallel enquiry on matters pending before the Court and thereby intended to interfere with the course of justice
The record clearly showed that the appellants had at no time intended to interfere with the course of justice nor had their conduct tended to do so
They had taken care not to comment on any proceedings pending in I court or the issues arising out of them
Per Subba Rao J The appellants obviously initiated an enquiry which went beyond the scope of the resolution passed by the Corporation
With the knowledge that criminal proceedings were pending they examined witnesses and served the 462 questionnaire
They permitted councillors and others to attend the enquiry which was in no sense confidential
It is settled law that a person is guilty of contempt of court if the act done by him is intended or calculated or likely to interfere with the course of justice
Re Read  Huggonson   The Queen V Payne  The Queen vs Gray  R V Odham s Press Ltd  R vs Duffy Mohapatra ILR 1955 Cuttack 305 and Ganesh Shankay Vidyarthi s case AIR 1929 All81 referred to
It could not be said in the instant case that the enquiry initiated by the committee to ascertain whether the first respondent had suborned witnesses cited or examined against him could not have serious repercussions on the proceedings pending in the Magistrate s court or in the High Court
Although a strong willed  Magistrate might not be influenced by the enquiry it might unconsciously affect a weaker mind and thug obstruct the even course of justice
Even though a judge of the High Court might withstand the effect of such an enquiry that would not prevent the public and the parties especially in a criminal case from reasonably apprehending that the enquiry or the findings made by the committee might affect a fair hearing of the matter
The contempt in the instant case was not merely of a technical nature but of a serious character calculated to interfere with and obstruct the due course of justice and as such was preeminently one against which the court must take action