Case: Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and Another

5th May the receipt of which was not denied by the reply of the advocate for the respondents and the lawyers notices on behalf of the appellant, Ex. P-35 and P-36, dated 13th May and 22nd May, 1964 would show great anxiety on the part of the appellant to complete the sale de ed. There can be no doubt that they had basis for suspecting that the respondents were not willing to perform their part of the contract.A considerable volume of evidence has been let in on behalf of the appellant as well as the respondents regarding as to what took place in the Sub-Registrars office on 25th May, 1964. It is sufficient to state that both the parties let in oral evidence as well as acknowledgment by the Sub-Registrar to prove their presence. Though both the parties would assert their presence it is common ground that they did not meet each other. It is difficult for us to. comprehend as to how if both the parties we re present at the Sub-Registrars office they did not meet each other. It is obvious therefore that the parties were keen on creating evidence in support of the ensuing litigation. But on the facts the conclusion is irresistible that it was the appellant who was anxious to get through the sale deed, he having paid Rs. 4000 as the earnest money and living in the premises for over 25 years. It is not necessary for us to refer to the subsequent letters and telegrams exchanged between the parties as that would not alter the position in any event.7. On a consideration of the letters and telegrams that passed between the parties the trial court held that it was proved beyond a shadow of doubt that the appellant was always ready and willing to perform his part of the contract and that the respondents were not anxious to execute the sale deed. The trial court accepted the evidence on behalf of the appellant that the appellant was possessed of sufficient funds and in fact he withdrew a sum of Rs. 20, 500 from the Central Bank of India Ltd. As the appellant had paid the respondents Rs. 4000 he had to pay them only Rs. 20, 000 towards the balance of sale consideration. The arrears of Rs. 956 due towards rent and a sum of Rs. 2000 was to be spent on getting the sale deed executed. In all a sum of Rs. 22, 956 was required. He had withdrawn Rs. 20, 500 from the Central Bank of India Ltd. The trial court accepted the evidence adduced by the appellant. The trial court also accepted the evidence that the appellant had Rs. 5, 000 with him at home and about Rs. 30, 000 in deposit with a firm. This part of the testimony on behalf of the appellant was proved by the evidence of Kailash Nath. P.W.2, Manira of M/s. Chhitar Mal Ram Dayal and the trial court accepted the evidence and found that the appellant had sufficient funds for getting the sale deed executed.This conclusion which we consider is irresistible was not accepted b y the High Court. The High Court while accepting the evidence that the appellant had a sum of Rs.4, 500 in deposit in the bank upto 20th May, 1964 and subsequently on 21st May, 1964 he deposited a sum of Rs.14, 000 and again a sum of Rs. 2, 500 on 22nd May, 1964 and that thus the appellant had Rs. 21, 000 in bank on 22nd May, 1964 found the case of the appellant unworthy of credit. The High Court further observe d that after the appellant had raised his deposit in the bank to Rs. 21, 000 he did not deposit any further amount and therefore the amount fell short of the needed amount by Rs. 2, 000. Conscious of the weakness in his story, the appellant asserted in his statement that he had Rs. 7, 000 or 8, 000 with him at his house. We are at a loss to follow the reasoning of the High Court. The appellant stated that he deposited the money which was with him in the house in the bank on advice for the purpose of proving that he had money with him. The Court does not suspect that he did not have Rs. 20, 500. The shortage at the most is of Rs. 2, 000 and it cannot be said that the evidence of the appellant that he had necessary money for expenses of registration is unacceptable. Further the appellant examined Kailash Nath, P.W.2, of M/s. Chhitar Mal Ram Dayal who stated that a sum of Rs.30, 000 belonging to the appellant was lying in deposit with them. We are unable to accept the conclusion of the High Court that the appellant did not have enough funds for getting the sale deed executed the High Court while not disbelieving the fact that various letters and telegrams were sent by the appellant has remarked that the appellant did not take the course of personally going to the respondents and asking for the: sale deed. In our view, the parties were suspecting each other and nothing would have been achieved by the appellant by going in person and requesting the respondents to execute the sale deed. In fact the respondents set up. a story that the appellant approached the respondents and stated that he was not able to perform his part of the contract within the Stipulated time. This evidence cannot be accepted taking into account the relationship between the parties. We have carefully considered the evidence and the correspondence between the parties and we have no hesitation in accepting the conclusion reached by the trial Judge that the appellant was always ready and willing to perform his part of the contract and that the respondents were evading their responsibility. The finding on this issue by the High Court is not supported by evidence or on the probabilities of the case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The relevant clause is clause 4 which provides that the appellant must get the sale deed executed within two months i.e. upto 24th May, 1964, and in case the appellant did not get the sale deed registered within two months then the earnest money amounting to Rs. 4000 paid by the appellant shall stand forfeited without serving any notice. The clause further provides that in case the respondents in some way evade the execution of the sale deed then the appellant will be entitled to compel them to execute the sale deed legally and the respondents shall be liable to pay the costs and damages incurred by the appellant. It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immoveable property it will normally be presumed that the time is not the essence of the contract. (vide Gomathinayagam, Pillai &Ors. v. Palaniswami Nadar)([1967] 1 S.C..R. 227, 233.). It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence-of the contract.Apart from the normal presumption that in the case of an agreement of sale of immovable property time is not the essence of the contract and the fact that the terms of the agreement do not unmistakably state that the time was understood to be the essence of the contract neither in the pleadings nor during the trial the respondents contended that time was of the essence of the contract. In the plaint the allegation was that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement while the respondents committed breach of the contract. The respondents did not set up the plea that the time was of the essence of the contract. In paragraph 32 of the Written Statement all that was stated was that the appellant did not perform his part of the contract within the stipulated time and that the contract thereafter did not. subsist and the suit is consequently misconceived. The parties did not go to trial on the basis that time was of the essence of the contract for no issue was framed regarding time being the essence of the contract. Neither is there any discussion in the judgment of the trial court regarding this point. The trial court after considering the evidence came to the conclusion that appellant was always ready and willing to perform his part of the contract while the respondents were not in the circumstances therefore the High Court was in error setting as one of the points for determination whether time was of the essence of the contract. The High Court after referring to the agreement was of the view that the agreement was entered into between the parties during the course of a litigation between the appellant and the respondents and in pursuance of the agreement the parties were directed, to withdraw their cases and were directed further not to take fresh legal steps during the period of two months within which the sale deed was to be executed. On taking into, account the circumstances of the case and...the conduct of the parties of serving on each other notices, counter notices and telegrams the High Court inferred an intention on the part of the parties to treat the time as of essence, of the contract. We will refer to the terms of the contract and the correspondence between the parties in due course but at this stage it is sufficient to state that neither the term s of the agreement nor the correspondence would indicate that the parties treated time as of essence of the contract. In fact, according to the agreement the sale deed ought to have been executed by the 24th May but it is the admitted case that both the parties consented to have the document registered on the 25thfrom the absence of pleadings we do not find any basis for the plea of the respondents that the time was of the essence of the contract.The decision on this issue would be sufficient to allow this appeal and to grant the appellant the decree for specific performance which he has prayed for but as on the question whether the appellant was always ready and willing to perform his part o f the contract the courts below have given contrary finding and the High Court , has recorded a finding that the appellant was not ready and willing to. perform his part of the contract while the respondents were al ways ready and willing with which finding we are unable to agree we will discuss the evidence at somerespondents plea that the draft sale deed was not received does not show that they were willing or cooperating in the execution of the sale deed. We are unable to, give any weight to the contention of the learned counsel that their plea that they sent a draft sale deed cannot be true as they could not have been in possession of particulars about the title deed of the respondents. In fact no question was asked of the appellant when he was in the box as to how they got information as to the sale deed, by Aditya Narain in favour of the respondents. The letter of the 5th May the receipt of which was not denied by the reply of the advocate for the respondents and the lawyers notices on behalf of the appellant, Ex. P-35 and P-36, dated 13th May and 22nd May, 1964 would show great anxiety on the part of the appellant to complete the sale de ed. There can be no doubt that they had basis for suspecting that the respondents were not willing to perform their part of the contract.A considerable volume of evidence has been let in on behalf of the appellant as well as the respondents regarding as to what took place in the Sub-Registrars office on 25th May, 1964. It is sufficient to state that both the parties let in oral evidence as well as acknowledgment by the Sub-Registrar to prove their presence. Though both the parties would assert their presence it is common ground that they did not meet each other. It is difficult for us to. comprehend as to how if both the parties we re present at the Sub-Registrars office they did not meet each other. It is obvious therefore that the parties were keen on creating evidence in support of the ensuing litigation. But on the facts the conclusion is irresistible that it was the appellant who was anxious to get through the sale deed, he having paid Rs. 4000 as the earnest money and living in the premises for over 25 years. It is not necessary for us to refer to the subsequent letters and telegrams exchanged between the parties as that would not alter the position in anyare at a loss to follow the reasoning of the High Court. The appellant stated that he deposited the money which was with him in the house in the bank on advice for the purpose of proving that he had money with him. The Court does not suspect that he did not have Rs. 20, 500. The shortage at the most is of Rs. 2, 000 and it cannot be said that the evidence of the appellant that he had necessary money for expenses of registration is unacceptable. Further the appellant examined Kailash Nath, P.W.2, of M/s. Chhitar Mal Ram Dayal who stated that a sum of Rs.30, 000 belonging to the appellant was lying in deposit with them. We are unable to accept the conclusion of the High Court that the appellant did not have enough funds for getting the sale deed executed the High Court while not disbelieving the fact that various letters and telegrams were sent by the appellant has remarked that the appellant did not take the course of personally going to the respondents and asking for the: sale deed. In our view, the parties were suspecting each other and nothing would have been achieved by the appellant by going in person and requesting the respondents to execute the sale deed. In fact the respondents set up. a story that the appellant approached the respondents and stated that he was not able to perform his part of the contract within the Stipulated time. This evidence cannot be accepted taking into account the relationship between the parties. We have carefully considered the evidence and the correspondence between the parties and we have no hesitation in accepting the conclusion reached by the trial Judge that the appellant was always ready and willing to perform his part of the contract and that the respondents were evading their responsibility. The finding on this issue by the High Court is not supported by evidence or on the probabilities of the case.