dedol-hf/india-case-legal-rag huggingface dataset:
It  was urged that the various starting points mentioned  in
the third column to article 182 of the Limitation Act cannot
apply  because none of them specify a fresh  starting  point
for  execution  acquired on the ground of the fraud  of  the
judgment-debtor.  This argument, in our opinion, instead  of
helping  the appellant, goes against him.  Such a  provision
in the third column in the article relating to execution  of
decrees  is not necessary because provision for such a  con-
tingency is made in section 18. Affirmatively, by the inclu-
sion  of section 18 in the Limitation Act, and,  negatively,
by not providing for a separate period of limitation in  the
case of the fraud of the judgment-debtor in the third column
in the articles, the Legislature has clearly indicated  that
unless advantage could be taken by the
867
decree-holder under section 18 on the ground of the fraud of
the  judgment-debtor, fraud does not give any  other  relief
under the Limitation Act.  This scheme of the Legislature is
not  inconsistent  with section 48 of  the  Civil  Procedure
Code.  The two provisions in the two Acts have to be read as
related to the same subject but dealing with two  differents
aspects.   Without section 48 of the Civil Procedure Code  a
decree-holder, if he made applications as required by  arti-
cle 181 or 182 of the Limitation Act, could keep his  decree
alive  for  an  indefinite period.  The  Legislature,  as  a
matter of policy, ruled that a decree of a civil court  (but
excluding  the High Court) shall not be kept alive for  more
than 12 years, although all necessary steps are taken  under
the  Limitation Act to keep the decree alive and  operative.
That  is  one  limit to the right of  the  decree-holder  to
enforce  the decree of the court. The second  limitation  to
his  right,  which is independent of the first, is  that  he
must keep the decree alive under article 182 or 181, as  the
case  may  be.  In the case of the fraud  of  the  judgment-
debtor provision is made in section 48(2) for enlarging  the
12 years period prescribed under section 48.  For  defeating
the plea of the bar of limitation under the Limitation  Act,
in  the case of fraud of the judgment-debtor,  provision  is
found in section 18 of the Limitation Act.  If the  particu-
lar case of fraud set up and proved is not covered by  those
words, there is no protection against the same in the  Limi-
tation  Act.  Read in that way, the two  legislative  provi-
sions  are  neither conflicting nor overlapping;   and  they
are  capable  of operating harmoniously, as they  deal  with
different  situations  and circumstances. The  argument  ad-
vanced on behalf of the appellant that because of the  fraud
he  got not merely a fresh starting point for computing  the
12 years period prescribed in section 48 ('2,) of the  Civil
Procedure  Code but is also entitled to an extension of  the
time under the Limitation Act, must therefore fail.
    The  second contention urged on behalf of the  appellant
that because in the third column of article 182
868
  fraud  is  not mentioned, the case is covered  by  article
181  does not also appear to be sound. The third  column  in
article  182  prescribes the starting  point  of  limitation
under different specified circumstances.  It does  not,  and
indeed  need  not, mention the ground of  fraud  because  if
fraud  of the kind against which the Limitation Act  contem-
plates relief, as prescribed in section 18 of the Limitation
Act,  is established, the time is automatically  altered  by
operation  of that section. If the case does not fall  under
that  section, no relief is  permitted under the  Limitation
Act and the starting point for computing the period must  be
as  mentioned   in  the third column,  irrespective  of  the
question  of fraud.  In our opinion, therefore, the  conten-
tion  that  because of the fraud established in the  present
case   under section 48(2) of the Civil Procedure Code,  the
appellant  gets a fresh starting point of  limitation  under
article 182 of the Limitation Act is unacceptable.
     The  appellant relied on the general principle of  juris
prudence  that fraud stops or suspends the running of   time
and  that  it should be applied in his  favour,  apart  from
section 18 of the Limitation Act.   Rules of equity have  no
application.  where there are definite statutory  provisions
specifying  the  grounds  on the basis of  which  alone  the
stoppage  or suspension of running of time can arise.  While
the courts necessarily are astute in checkmating or fighting
fraud,  it should be equally borne in mind that statutes  of
limitation are statutes of repose.
    For the reasons given above we concur in the  conclusion
reached by the High Court and dismiss the appeal with costs.
Appeal dismissed.
Agent for the appellant:  K.J. Kale.
Agent for the respondent:  Ganpat Rai.
869
PETITIONER:
RAJA KAMALA RANJAN ROY
        Vs.
RESPONDENT:
BAIJNATH BAJORIA.
DATE OF JUDGMENT:
01/12/1950
BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
KANIA, HIRALAL J. (CJ)
SASTRI, M. PATANJALI
CITATION:
 1951 AIR    1            1950 SCR  840
ACT:
Contract-- Specific performanance--Offer to    purchase lease-
hold  right-- Stipulation that lesses should obtain  consent
of  lesser--Lessor  unreasonably  refusing  consent--Lessee,
whether  relieved of liability to assign--Suit for  specific
performance       by       purchaser--Maintainability--Lease
deed--Covenant  prohibiting  assignment  of  lease   without
lessor's  consent, "such consent, however, not to be  unrea-
sonably  withheld in case of respectable  person  "--Meaning
and effect of covenant.
(1) 47 Cal. 485, at p. 494.
     841
HEADNOTE:
    The  defendant  had obtained certain premises  on  lease
under  a deed which contained a covenant by the lessee  "not
to  assign the demised premises or any part thereof  without
first  obtaining  the written consent of  the  lessor,  such
consent,  however,  not to be unreasonably withheld  in  the
ease  of  respectable or responsible person ".   After  some
offers  and  counter offers the plaintiff  finally  made  an
offer  to  purchase the defendant's  leasehold  interest  on
certain  terms  one of which was that "the  consent  of  the
landlord  will be obtained by you before the  completion  of
the  sale "; and the offer was unconditionally  accepted  by
the defendant.  The defendant subsequently refused to assign
on the ground that the lessor had withheld his consent,  and
the  plaintiff sued for specific performance of  the  agree-
ment:
   Held,  (i)  that the agreement was not, for  its  coming
into  being, conditional or contingent on the  obtaining  of
the lessor's consent, the obligation to obtain the  lessor's
consent being only a term of the agreement which the defend-
ant  had to fulfil; (ii) the words "such  consent,  however,
not to be unreasonably withheld in the case of a respectable
or responsible person" in the leasedeed did not amount to  a
separate or independent covenant by the lessor that he would
not refuse consent except on reasonable grounds in the  case
of a respectable or responsible person, but only limited  or
qualified the leesee's covenant not to assign with. out  the
lessor's  consent, by relieving him from the burden  of  the
covenant if the lessor withheld his consent unreasonably  in
the case of proposed assignment to a respectable or  respon-
sible person ; (iii) that, as the plaintiff was admittedly a
respectable  and responsible person and on the facts of  the
case the lessor's refusal to give consent was  unreasonable,
the  defendant could validly assign the lease  without  such
consent;  (iv)  that the court could come to a  decision  on
this  matter even though the lessor was not a party  to  the
suit  and  the  decision might not bind him;  (v)  that  the
defendant  could  not under these  circumstances  plead  the
absence  of the lessor's consent as relieving him  from  the
obligation  to  perform  his part of the  agreement  if  the
plaintiff  insisted on his carrying out the  agreement  even
though the lessor had not given his consent; and the  plain-
tiff  was therefore entitled to a decree for  specifie  per-
formance of the agreement.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4 of 1950.
    Appeal  from  the High Court of Judicature  of  Calcutta
(Sir  Trevor Harries C.J. and Mukherjea J.) from a  judgment
and  decree  dated May 30, 1948, in Appeal No.  21  of  1947
confirming  with modifications the decree of a single  Judge
of  the same High Court (Ormond J.) dated January 24,  1947,
in suit No. 1031 of 1945.
     108
842
    N.C.Catterjee  (Samarendra Nath Mukherje, with him)  for
the appellant.
    P.L.  Banerjee (Upendra Chandra Mullick, with  him)  for
the respondent.
    1950.  December 1.  The Judgment of the Court was deliv-
ered by
    DAS  J.----This is an appeal by the defendant in a  suit
for specific performance against the  judgment and decree of
the High Court of Judicature at Fort William in Bengal  (Sir
Trevor  Hatties C.J.  and Mukherjea J.) dated May 30,  1948,
dismissing his appeal and confirming, with certain modifica-
tions,  the  judgment and decree  for  specific  performance
passed  by Ormond J. on January 24, 1947.  There is no  sub-
stantial dispute as to the facts leading up to tim suit  out
of which the present appeal has arisen and they may  shortly
be stated:
    Maharaja Sris Chandra Nandy of Cossimbazar is the  owner
of  premises No. 374 Upper Chitpur Road in the town of  Cal-
cutta (hereinafter referred to as the "said premises").   By
an  Indenture of lease made on April 27, 1931, the  Maharaja
as  manager  of the Cossimbazar Raj Wards Estate  which  was
then under the management of the Court of Wards demised  tim
said premises to one Madan Gopal Daga for a term of 51 years
commencing from May 1, 1931, at and for the monthly rent  of
Rs. 1,083-5-3 and upon terms and conditions contained there-
in.  By sub-clause (6) of clause 2 of the said Indenture the
lessee covenanted, amongst other things, "not to assign  the
demised premises or any part thereof without first obtaining
the  written consent of the lessor, such  consent,  however,
not  to be unreasonably withheld in the case of  respectable
or  responsible  person  .........  "  There was  the  usual
proviso  for  re-entry  for non-payment of  rent  for  three
months  or  for  breach of any of  the  lessee's  covenants,
without  prejudice to the lessor's right of action for  such
breach.   On  March  25, 1943, Madan Gopal  Daga,  with  the
written consent of the lessor, assigned the unexpired  resi-
due of the lease to the defendant who
   843
was  accepted as the lessee by the lessor.  By an  agreement
said  to  have been arrived at by  correspondence  exchanged
between the plaintiff and the defendant and their respective
solicitors  between January 27, 1945, and February 2,  1945,
the  defendant is alleged to have agreed to assign the  said
lease to the plaintiff for the unexpired residue of the term
with  effect from February 1, 1945, at and for the price  of
Rs. 1,80,000 and upon terms and conditions contained in  the
correspondence  to which reference will be made  in  greater
detail hereafter.  On February 21, 1945, the defendant wrote
a  letter  to the lessor intimating that he  had  agreed  to
assign  his interest in the lease to the plaintiff  and  re-
questing  the lessor to give his consent in writing to  such
assignment.   On March 5, 1945, the lessor replied that  the
question of his giving consent to the transfer of the  lease
could  not be entertained as he had already  determined  the
lease and that in the circumstances the whole initiative was
in the hands of the defendant. This letter clearly indicated
that the lease had been determined for non-payment of  rents
and  it obviously implied that it was for the  defendant  to
get  the lease revived by paying up the arrears of  rent  so
that the question of giving consent to an assignment of  the
lease might be considered by the lessor.  On March 8,  1945,
the defendant by his solicitors' letter informed the  plain-
tiff's  solicitors  that the defendant  had  approached  the
lessor but had failed to secure his consent and that, as  no
valid  transfer could be made without such consent  and  the
agreement  for  sale was subject to such consent  being  ob-
tained,  the defendant was reluctantly compelled  to  cancel
the  agreement.  The plaintiff by his solicitors' letter  of
March  10, 1945, maintained that the agreement was not  sub-
ject to the alleged condition and that the defendant was not
entitled  to cancel the agreement.  It was pointed out  that
under the terms of the lease the lessor could not refuse his
consent  to  the transfer of the lease to a  respectable  or
responsible person which the plaintiff undoubtedly was.   It
is not necessary to refer to the further correspondence that
followed in which each
844
party maintained his own contention.  On March 17, 1945, the
lessor filed a suit (being suit No. 425 of 1945) in the High
Court against the defendant for the recovery of the  demised
premises  on the ground that the lease had been  determined.
It  was  during the pendency of that suit that  on  July  4,
1945, the suit for specific performance of the agreement  to
assign the lease out of which the present appeal has  arisen
was filed by the plaintiff against the defendant.
On  July 13, 1945, the lessor's suit for  ejectment  was
settled  by  the defendant consenting to a  decree  for  Rs.
59,213-11-0 for arrears of rent which was paid up. There  is
no dispute that the forfeiture of the lease for  non-payment
of  rent was waived and the lease was  accordingly  revived.
Shortly  after  the  settlement of the  ejectment  suit  the
defendant  on August 6, 1945, applied to the lessor for  his
consent  to the assignment of the lease and on the same  day
the  lessor  in reply declined to give his  consent  without
assigning  any reason whatever.  The suit for specific  per-
formance  came up for disposal before Ormond J. in  November
1946  when it was heard in part and was adjourned.   It  was
eventually  further heard in January 1947 and  finally  dis-
posed of on January 23, 1947, when Ormond J. passed a decree
against the defendant for specific performance of the agree-
ment.  The decree provided that in the event of the  defend-
ant  being  unable within a fortnight from the date  of  the
decree  to  obtain  the written consent of  the  lessor  the
assignment should be made without such consent.  The defend-
ant appealed. After two days' hearing, "in order to clear up
the matter" the appeal Court "gave the plaintiff an opportu-
nity  to examine the Maharaja as a witness in this  case  so
that  all  relevant facts might be brought  out  and  placed
before the Court for the purpose of enabling it to come to a
proper decision on this point."  The appeal was  accordingly
adjourned and the lessor was examined on commission and  his
evidence was filed in the proceedings.  After further  hear-
ing  the appeal Court dismissed the defendant's  appeal  and
confirmed the decree for specific performance of the  agree-
ment
      845
without  the  need for obtaining the consent of  the  lessor
prior  to the execution of the deed of assignment in  favour
of  the plaintiff.  This decree was subsequently amended  by
inserting therein a provision enabling the plaintiff to  set
off  from the purchase price the amount of rent  payable  as
and from February 1, 1945, until the date of conveyance less
all outgoings and interest on the purchase price at four per
cent.  per annum from that date to the date of  the  convey-
ance.   The  defendant has now come up before us  in  appeal
from this judgment and decree of the appeal Court.
The  first point urged by learned counsel  appearing  in
support of this appeal is that, being subject to the consent
of the lessor, the agreement was contingent on the defendant
obtaining such consent and as the defendant could not secure
the lessor's consent no effective agreement came into  being
which  could be ordered to be specifically  performed.   The
determination  of  this question must depend  on  a  correct
analysis and ascertainment of the meaning and import of  the
correspondence  by which the agreement is said to have  been
arrived at. It was on January 9.7, 1945, that the  plaintiff
offered  to purchase the defendant's leasehold  interest  in
the said premises upon terms and conditions set forth in the
plaintiff's  letter of that date.  Clauses 3 and 4 of  those
terms were as follows:
    "(3).   The  lease will be transferred in my  favour  as
from  the  1st February, 1945, and I shall  be  entitled  to
recover  rents from the tenants as from that date and  shall
pay  the rent to the superior landlord and  municipal  taxes
from that date.
    (4).  You shall have to obtain the necessary consent for
the transfer of the lease in favour of myself or my nominees
from  the said Maharaja of Cossimbazar before the  execution
of the transfer of lease in my favour. ' '
    The defendant replied to the plaintiff's above letter on
January 28, 1945.  By this reply the defendant expressed his
willingness to transfer the lease to the plaintiff on  terms
contained  therein.  Clauses 3 and 4 of this letter were  as
follows:
846
    "(3)   If your final acceptance as stated above  is  re-
ceived  within  30th  January current and if I  am  able  to
obtain  the consent of Maharaja Cossimbazar for transfer  of
the leasehold interest wi. thin the first week of  February,
1945, I agree to your para 3.
    (4)  Your para 4 is agreed to but the name or  names  of
the  persons to be mentioned in the sale deed for whom  per-
mission  is to be taken from Maharaja Cossimbazar should  be
clearly stated with their respective addresses."
    It  is  quite clear that no agreement was  concluded  by
these  two  letters for the defendant's letter  was  not  an
unconditional  acceptance  of  the  plaintiff's  offer   but
amounted  in law to only a counter-offer.  By clause  3  the
defendant offered to transfer the lease to the plaintiff  as
from  February  1, 1945, so as to entitle the  plaintiff  to
realize the rents from that date and to be liable to pay the
rent  to the lessor also from that date on  two  conditions,
namely, that the plaintiff's acceptance was received  within
January  30, 1945, and the defendant was able to obtain  the
lessor's  consent within the first week of  February,  1945.
This clause did not make the offer itself contingent on  the
obtaining  of the lessor's consent but made one of the terms
of the offer, namely, that the lease would be transferred as
from  February 1, 1945, conditional on the obtaining of  the
lessor's  consent within the first week of  February,  1945.
Likewise, subject to the name of the assignee being  clearly
stated  the  defendant  by clause 4 offered  to  obtain  the
lessor's  consent to the assignment of the lease.  Clause  4
of  the defendant's letter was not so expressed as  to  make
the  defendant's offer contingent on his obtaining the  les-
sor's consent.  On the contrary, clause 4 constituted one of
the  terms of the offer which, on the offer being  accepted,
would become binding on the defendant as one of the terms of
the  agreement. The plaintiff, however, does not  appear  to
have  accepted the defendant's counter offer but on  January
29,  1945,  through  his solicitors made a  fresh  offer  to
purchase the defendant's leasehold interest at Rs.  1,80,000
on the following terms:
      847
"(a)  That the earnest money will be Rs. 5,000 (Rupees  five
thousand) instead of Rs. 30,000.
    (b)  Our  client  will have the conveyance  in  his  own
favour.  The consent of the landlord will be obtained by you
before the completion of sale.
(c) That your client will complete the conveyance within
a  month after the receipt by us of all the  original  title
deeds with you.
    (d)  That the transfer of the property in favour of  our
client will take effect on and from the 1st February,  1945,
irrespective  of the date of the conveyance, he being  enti-
tled  to all the rents, issues and profits and being  liable
for  all the liabilities in respect thereof since  the  said
date.
(e)  That our client will not be liable to pay your  Solici-
tor's Bill of cost in respect of the sale."
    Again,  it will be noticed that by clause (b) the  offer
was  not  made contingent on the obtaining of  the  lessor's
consent  but  the plaintiff  insisted   on  the  defendant's
obtaining such consent as a substantive term of his offer so
that  if the offer by being accepted ripened into an  agree-
ment  the  defendant would be bound to obtain  the  lessor's
consent  as a term of such agreement.  The defendant by  his
solicitors'  letter  dated February 1,  1945,  purported  to
accept   the  plaintiff's   last   offer   with   a   slight
reservation, namely ,--
    "As  regards clause (d) of your said letter, it is  dis-
tinctly  understood that the same should be given effect  to
only in case the conveyance is completed in terms of  clause
(c) of your said letter."
    On  February 2, 1945, the plaintiff by  his  solicitors'
letter  of that date unconditionally accepted this  reserva-
tion and so a concluded agreement was arrived at between the
parties.  This agreement was not, for its coming into being,
contingent  or conditional on the obtaining of the  lessor's
consent.  The obligation to obtain the lessor's consent  was
cast upon the defendant as a term of the agreement.  In  our
judgment  the  Court  below was right in  holding  that  the
agreement
848
itself was not contingent as contended for by the appellant.
    The contentions next advanced by learned counsel for the
appellant relate to the lessee's covenant contained in  sub-
clause  (6) of clause 2 of the lease to which reference  has
already  been made.  The legal incidents of such a  covenant
are  now well established by judicial decisions referred  to
in the judgment of the High Court and it is not necessary to
refer to them in detail.  Suffice it to say, that the  words
"such  consent, however, not to be unreasonably withheld  in
the case of respectable or responsible person" contained  in
the  covenant  do not amount to a  separate  or  independent
covenant  by  the lessor that he would  not  refuse  consent
except upon reasonable grounds in the case of respectable or
responsible  person, but that those words limit  or  qualify
the  lessee's  covenant not to assign the  demised  premises
without  the  consent in writing of the  lessor.   In  other
words,  those words have the effect of relieving the  lessee
from the burden of this covenant if the lessor withholds his
consent  unreasonably  in case of proposed assignment  to  a
respectable  or  responsible person.  In this  view  of  the
matter, the plaintiff contended that he being a  respectable
and responsible person the lessor had unreasonably  withheld
his  consent  to the proposed assignment to  him   and   had
consequently relieved  the defendant from the burden of  his
covenant  so  that the defendant could legally  and  validly
assign the lease to him without such consent of the lessor.
    The  first  objection  taken by the  appellant  to  this
contention of the plaintiff is that in his plaint the plain-
tiff  insisted   on  the defendant  obtaining  the  lessor's
consent  and that he should not have been permitted to  make
this new case at the hearing.  Both the trial Court and  the
appeal  Court  held that there was,  strictly  speaking,  no
element  of  surprise, particularly  because  the  plaintiff
relied  upon  facts  admitted and proved  by  the  defendant
himself  and that it was open to him to take this point.  We
may  also add that this point was in a manner  indicated  in
the plaint
     849
itself  for in paragraph 11 thereof it was pleaded that  the
plaintiff was a responsible and respectable person and  that