Case: R. C. Chandiok &amp; Anr Vs. Chuni Lal Sabharwal &amp; Ors

any stage were not ready and willing to perform their part of the contract. The High Court had taken another aspect of readiness and willingness into consideration, namely, the possession of sufficient funds by the appellants at the material time for payment of the balance of the sale price. Romesh Chand P.W. 6 had stated that his father was a Head Master since 1922 in a High School and he was also doing import business. He gave up service in 1934. The son joined the father in his business in the year 1928 and his other brother appellant No. 2 also joined that business some years ago. The bank account was produced which showed that between July. 18, 1955 and December 31, 1955 the appellants father had in his account a credit of over Rs. 15,000/but thereafter between January 1956 and March 1956 an amount of Rupees 16,000/- odd had been withdrawn. According to the High Court after these dates there was nothing to show that the appellants had any funds. The evidence of Ramesh Chand P.W. 6 that the family had an amount of Rs. 40,000/- lying at their house was not believed. Now in the first place the relevant period for determining whether the appellants were in a position to pay the balance of the sale price was after November 1956 when sanction had been obtained by the respondents for transfer of the plot from the Rehabilitation Ministry. The appellants had admittedly paid without any difficulty Rs. 7,500/- as earnest money and the bank account of the father showed various credit and debit entries from time to time. On March 5, 1956 an amount of Rs. 12,720/had been withdrawn by a cheque in favour of Romesh Chand P. W. 6. According to his statement this amount was withdrawn because his father was very ill and it was decided to withdraw the amount at that time. It was deposited with his mother and remained with her throughout. There is no material or evidence to show trial this amount had been expended or spent and that the statement of Romesh Chand was false on the point. Even if the version that Rs. 40,000/- in cash were lying at the house of the appellant is discarded at least an amount of Rs. 12,720/- must have been available at the material and relevant time. The appellants were carrying on business and there is nothing to indicate that they were not in a position to arrange for the remaining sum to make up the total of Rs. 15,000/-.We are, therefore, unable to accept that the appellants. Who had all along been trying their utmost to purchase the plot did not have the necessary funds or could not arrange for them when the sale deed had to be executed and registered after the sanction had been obtained. 8. Coming to the last point the High Court has held that the appellants were disentitled to a decree for specific performance because a statement was made at the Bar that during the pendency of the appeal they had executed the decree of the trial Court and an amount at Rs. 7,500/- had been deposited by the respondents pursuant to the execution proceedings. It is true that the appellant could not accept satisfaction of the decree of the trial Court and yet prefer an appeal against that decree. That may well have brought them within the principle that when the plaintiff has elected to proceed in some other manner than for specific performance he cannot ask for the latter relief. This is what Scrutton, L. J. said in Dexters, Limited v. Hill Crest Oil Com. Bradford Ltd., (1926) 1 KB 348 at p. 358:"So, in my opinion, you cannot take the benefit of a judgment as being good and then appeal against it as being bad." It was further observed:"It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right." This illustrates the rule that a party cannot approbate and reprobate at the same time. These propositions are so well known that no possible exception can be taken to them. In the present case, however, the above rule cannot apply because the appellants had by consistent and unequivocal conduct, made it clear that they were not willing to accept the judgment of the trial Court as correct. It has already been mentioned at a previous stage that after the decision of the trial court the appellants had even applied on March 31, 1958 for an injunction restraining the respondents from selling or otherwise disposing of the plot as it was apprehended that they were trying to do so. It was stated in this application that the plaintiffs would be preferring an appeal but it would take time to secure certified copies. An appeal was in fact preferred and seriously pressed before the High Court on the relief relating to specific performance. This relief is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the appellants, which is always an important element for consideration, was such that it precluded them from obtaining a decree for specific performance. 9. It is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at page 369 in Lala Durge Prasad v. Lala Deep Chand, 1954 SCR 360 = (AIR 1954 SC 75 ) viz.. "to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor, all he does is to pass on his title to the plaintiff.

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

Explanation:
1[ds]6. We are unable to concur with the reasoning or the conclusions of the High Court on the above main points. It is significant that the lease deed was not executed in favour of the respondents by the Government until May 21, 1956. So long as their own title was incomplete there was no question of the sale being completed. It is also undisputed that according to the conditions of the lease the respondents were bound to obtain the sanction of the Rehabilitation Ministry before transferring the plot to any one else. The respondents were fully aware and conscious of this situation much earlier and that is the reason why on5 it was agreed while extending the period for execution of the sale deed that the same shall be got executed after receipt of the sanction. The statement contained in Exhibit7 that that the execution of the sale deed"by us cannot be complete without the said sanction" was unqualified and unequivocal. The respondents further undertook to inform the appellants as soon as sanction was received and there after the sale deed had to be executed within a week and got registered on payment of the balance amount of consideration. We are wholly unable to understand how in the presence of Exhibit7 it was possible to hold that the appellants were bound to get the sale completed even before any information was received from the respondents about the sanction having been obtained. It is quite obvious from the letter Exhibit8 dated June 15, 1956 that the respondents were having second thoughts and wanted to wriggle out of the agreement because presumably they wanted to transfer it for better consideration to some one else or to transfer it in favour of their own relation as is stated to have been done later. The respondents never applied for any sanction after August 11, 1955 and took up the position that they were not prepared to wait indefinitely in the matter and were therefore cancelling the agreement "for want of certainty."We are completely at a loss to understand this attitude nor has any light been thrown on the uncertainty contemplated in the aforesaid letter. It does not appear that there would have been any difficulty in obtaining the sanction if the respondents had made any attempt to obtain it. This is obvious from the fact that when they actually applied for sanction on November 11, 1956 it was granted after almost a week. The statement contained in Exhibit0 dated July 4, 1956 that the sanction was not forthcoming has not been, substantiated by any cogent evidence as no document was placed on the record to show that any attempt was made to obtain sanction prior to November 11. 1956. Be that as it may the respondents could not call upon the appellants to complete the sale and pay the balance money until the undertaking given in Exhibit7 dated August 11, 1955 had been fulfilled by them. The sanction was given in November 1956 and even then the respondents did not inform the appellants about it so as to enable them to perform their part of the agreement of sale. There was no question of time having ever been made the essence of the contract by the letters sent by the respondents nor could it be said that the appellants had failed to perform their part of the agreement within a reasonable time.The appellants were carrying on business and there is nothing to indicate that they were not in a position to arrange for the remaining sum to make up the total of Rs.e are, therefore, unable to accept that the appellants. Who had all along been trying their utmost to purchase the plot did not have the necessary funds or could not arrange for them when the sale deed had to be executed and registered after the sanction had been obtained8. Coming to the last point the High Court has held that the appellants were disentitled to a decree for specific performance because a statement was made at the Bar that during the pendency of the appeal they had executed the decree of the trial Court and an amount at Rs. 7,500/had been deposited by the respondents pursuant to the execution proceedings. It is true that the appellant could not accept satisfaction of the decree of the trial Court and yet prefer an appeal against that decree. That may well have brought them within the principle that when the plaintiff has elected to proceed in some other manner than for specific performance he cannot ask for the latter reliefIn the present case, however, the above rule cannot apply because the appellants had by consistent and unequivocal conduct, made it clear that they were not willing to accept the judgment of the trial Court as correct. It has already been mentioned at a previous stage that after the decision of the trial court the appellants had even applied on March 31, 1958 for an injunction restraining the respondents from selling or otherwise disposing of the plot as it was apprehended that they were trying to do so. It was stated in this application that the plaintiffs would be preferring an appeal but it would take time to secure certified copies. An appeal was in fact preferred and seriously pressed before the High Court on the relief relating to specific performance. This relief is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the appellants, which is always an important element for consideration, was such that it precluded them from obtaining a decree for specific performance9. It is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at page 369 in Lala Durge Prasad v. Lala Deep Chand, 1954 SCR 360   = (AIR 1954 SC 75  ) viz.. "to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor, all he does is to pass on his title to the plaintiff.