ROMESH CHANDRA v. CHUNI LAL SABHARWAL — 1965 DIGILAW 108 (DEL)

Mehar Singh, J. ( 1 ) THIS is an appeal by the plaintiffs from the judgment and decree, dated March 30, 1959, of the First Class Commercial Subordinate Judge of Delhi. dismissing their suit for specific performance of a contract of sale of the property in dispute but giving. them a decree for the refund of the earnest money amounting to Rs. 7500. 00 with proportionate costs and interest at the rate of six per cent per annum till realisation. ( 2 ) THE defendants, Chuni Lal Sabharwal and Inder Raj Sabhanval, are father and son. On July 4, 1951, they were allotted plot No. S in Jangpura B,new Delhi, for a consideration of Rs. l5,000. 00 by the Rehabilitation Ministry of the Government of India (D. A.) on May 29, 19-"2, they werc informed that the plot, 1500 square yards in area, had been demarcated, and that they could take possession of it (Public Witness 4 ). On July 18, 1955 they entered into an agreement with the two plaintiffs, who are real brothers, to sell that plot to them for a consideration of Rs. 22,500. 00 taking from them Rs. 7,500. 00 as earnest money, and passing the receipt (P. 6) to them as evidence of the agreement as also of the receipt of the earnest money. This agreement. P. 6, further said that the plaintiffs were to pay the balance of the consideration within two months of the execution of that receipt by the defendants in their favour. On August II, 1955, Chuni La] Sabhar- wal defendant for himself and for his son Inder Raj Sabharwal gave to the plaintiff the letter P. 7, which it is proper to reproduce here in full- "with reference to the receipt dated 8-7-1955 executed by us in your favour acknowledging receipt of Rs. 7500. On August II, 1955, Chuni La] Sabhar- wal defendant for himself and for his son Inder Raj Sabharwal gave to the plaintiff the letter P. 7, which it is proper to reproduce here in full- "with reference to the receipt dated 8-7-1955 executed by us in your favour acknowledging receipt of Rs. 7500. 00 as earnest money for the sale of plot No. 8 measuring 1500 square yards in Jungpura B, owned by us and agreed to be sold to you by us, since it will take about a month more to obtain sanction of the Rehabilitation Ministry the execution of the sale deed by us ^ cannot be completed without the said sanction, it is hereby mutually agreed between us orally that the period for execution of the said sale deed shall remain extended till the time of the receipt of the said sanction and we hereby confirm the said oral agreement. We will inform you as soon as the said sum is received and within a week thereof we will execute the necessary sale deed in your favour and get the same registered against payment of the balance money. Plearesign the duplicate of this letter in confirmation of the said oral arrangement. "this letter is signed by Chuni Lal Sabharwal defendant and defers the execution of the sale deed till within a week of the grant of sanction for the sale by the Rehabilitation Ministry, at the same time pointing out that the sanction was expected within about a month. ( 3 ) ON March 29, 1956, the defendants paid ground rent for the plot (D. 2 and Public Witness 4), Sanction for transfer was not permissible by the Rehabilitation Ministry until the ground rent was paid. The lease of the plot in favour of the defendants by the Rehabilitation Ministry was executed on April 21 and registered on June 1, 1956 (P. W. 4) On June 15, 1956, the defendants, through counsel, "gave notice P. 8 to the plaintiffs, pointing out that the contract of sale was to be completed within one month of the date of the agreement but they are extended its execution for a month or two more on the asking of the plaintiffs and as they were not prepared to wait indefinitely, so they cancelled the agreement making an offer to the plain- tiffs to take back the earnest money of Rs. 7,500. 7,500. 00 within the one week of the receipt of the notice failing which they said they would be entitled to forfeit the earnest money and treat the agreement of sale as cancelled. The only matter that may be noted here is that in paragraph 2 of this notice the defendants refer to extensicn of time for execution of the sale deed by a month or two though they say that that was at the request of the plaintiffs. They do not say anything else or explain the circumstances in which any such request was made by the plaintiffs. To this the plaintiffs replied by a letter P. 9 of June 20, 1956. In their reply they reproduced verbatim the letter P. 7 given to them by Chuni lal Sabharwal defendants for himself and for his son Inder Raj Sabharwal defendant and then they point out that the defendants had not informed them of the receipt of sanction for transfer of the plot from the Rehabilitation Mini- stry, which, according to them, was incumbent upon them to do so, and they further clearly state that the defendants were deliberately delaying the obtaining of the sanction in spite of repeated requests to them by the plaintiffs to do so. This is a reply by the counsel for the plaintiffs to the counsel for both the defendants. The letter P. 7 is reproduced in full in it, and this explains the circumstances in which the time of one month provided in the original agreement of sale P. 6 came to be extended till the sanction for the transfer of the plot was obtained from the Rehabilita- tion Ministry, which, according to P. 7, was expected within about a month of the date of that letter. In their reply, P. 9, the plaintiffs said that they were ready and willing to perform their part of the agreement and informed the counsel for the defendants to advise the latter that they should obtain sanction for the sale of the plot. In their reply, P. 9, the plaintiffs said that they were ready and willing to perform their part of the agreement and informed the counsel for the defendants to advise the latter that they should obtain sanction for the sale of the plot. The counsel for the defendants followed by letter P. 10 of July 4, 1956, to the counsel for the plaintiffs reiterating previous stand on behalf of the defendants and pointing out that though the agreement of sale had become void on account of uncertainty and otherwise because of the plaintiffs not coming forth to have the execution of the sale deed in their favour, yet the defendants were still willing and ready for the execution of the sale deed within orte week of the receipt of letter P 10. after the expiry of which time, ift the plaintiffs did not have sale deed executed, they would consider the agreement of sale as terminated and would be at liberty to dispose of the plot. This letter on behalf of the defendants fixed one week of the receipt of it by the plaintiffs within which the latter could complete the sale transaction failing which the defendants terminated the agreement to sell the plot between the parties. The reply P. 11 of the counsel for the plaintiffs was made on July 12, 1956, saying that it was the duty ofthe defendants to give a perfect and a valid title to the plaintiffs and that the defendants had themselves admitted that they were unable to complete the execution of the sale deed without the sanction of the Rehabilitation Ministry, and then repudiated the claim of the defendants to terminate the agreement to sell the plot, although the plaintiffs had been ready and willing to take the sale of the plot according to the terms of the agreement between the parties. The next two letters, one of the counsel for the defendants (P. 12) of August 24, 1956, and the other as a reply by the counsel for the plaintiffs (P. 13) of September 12, 1956, reiterate the stands of the parties. The next two letters, one of the counsel for the defendants (P. 12) of August 24, 1956, and the other as a reply by the counsel for the plaintiffs (P. 13) of September 12, 1956, reiterate the stands of the parties. ( 4 ) WHILE this correspondence was going on between the parties on July 27, 1956, the plaintiffs issued an advertisement in the Times of India notifying the public that there was an agreement for the sale of the plot in question in their favour on behalf of the defendants and that anybody entering into any further agreement for sale of the same till be doing so at his own risk. It appears from letter, marked x of May 17, 1956, that the defendants applied for the first time for the grant of sanction for the sale of the plot. This was addressed to the Ministry of Rehabilitation. It is also to be found in the evidence of 0m Prakash (P. W. 4), in charge legal Section, Housing and Rent Office, Ministry of Rehabilitation, and plaintiff Romesh Chandra (P. W. 6 ). They applied again for permission to transfer the plot on November 1 1, 1956, and the sanction was granted on November 16, 1956 (P. W. 4 ). The plaintiffs were also making enquiries in this respect from the Ministry of Rehabilitation and were imformed by a letter (P. 5) of November 29, 1956, by the Ministry that the necessary sanction for transfer of the plot had been granted to the defendants. ( 5 ) THE plaintiff s case has been that, although they refused. to complete the sale without the defendants having obtained sanction for the transfer of the plot from the Ministry of Rehabilitation, they were ready and willing all the time to complete the contract of sale subject to the defendants obtaining such sanction, and when they did obtain sanction, they were called upon to execute the sale deed, which they refused to do. The plaintiffs aver that the change in the attitude of the defendants has been the result of rise in the price of the plot and in fact they say that the defendants made an effort to make them to agree to increased price. The plaintiffs aver that the change in the attitude of the defendants has been the result of rise in the price of the plot and in fact they say that the defendants made an effort to make them to agree to increased price. On the refusal of the defendants to live up to the agreement of sale of the plot, the plaintiffs on December 4, 1956, insti- tuted the suit for specific performance of that contract, or in the alterna- tive for refund of the earnest money of Rs. 7,500/. with interest at six per cent per annum, and costs and damages amounting to Rs. 15,000. 00, with interest at the rate already stated, thus making a total claim of Rs. 22. 500. 00 which is the consideration stated for the sale in the agreement of sale P. 6. ( 6 ) THE two defendants first filed a written statement on January 14, 1957, and urged a number of pleas in defence, but said nothing about the subsequent letter P. 7. of August II, 1955, orthat the time was essence of the contract, although in the paragraphs 3 and 4 of the plaint the plaintiffs specifically REFERRED TO the substance of letter P. 7 of August 11,1955. The defendants merely gave denial to these paragraphs. On January 30, 1957, Chuni Lal Sabharwal defendant was examined by the learned Trial Judge before the settement of issues and the letter P. 7 of August II, 1955, was put to him. He admitted that it was signed by him, but said that he did not send this letter to the plaintiffs. He also said that he neither read nor wrote English, but could only sign in English. Then he made an allegation that the plaintiffs obtained his signatures and that of his son on a blank paper on the representation that they wanted one month more to obtain sanction from the improvement trust. The trial Court then proceeded to settle eight issues in the suit on the very date. On May 8, 1957 statements of three witnesses on behalf of the plaintiffs were recorded and the trial of suit having been adjourned to August 2, 1957, on July II, 1957. Inder Raj Sabharwal defendant moved an application for permission to amend the written statement so far as he was concerned. The amended written statement, dated July II, 1957, was appended with this application. Inder Raj Sabharwal defendant moved an application for permission to amend the written statement so far as he was concerned. The amended written statement, dated July II, 1957, was appended with this application. The learned trial Judge allowed the amendment application of Inder Raj Sabharwal defendant. In his amended written statement this defendant again gave denial to paragraphs 3 and 4 of the plaint and in the additional picas he took the stand that he never signed the letter P. 7 of August 11, 1955, nor was his father authorised to do so on his behalf, and that time was essence of the contract as stated in the original agreement for sale P. 6. Otherwise he stated all over again the defences taken by the defendants in the original written statement. On this an additional issue was settled whether defendant 2 was bound by the alleged variation in the agreement, meaning the letter P. 7 of August 11, 1955 ? ( 7 ) THE learned trial Judge has discarded all the defences of the defendants except that the plaintiffs were not ready and willing to perform the contract of the sale though called upon to do so by the defendants a number of times that absence of sanction from the Rehabilitation Ministry permitting the defendants to transfer the plot did not and could not stand in the way of the plaintiffs in completing the contract of sale and that as it were the plaintiffs who were the defaulting party, the defendants had the right, even though originally the time may not be taken as essence of the contract between the parties, to make expressly time assence of the contract to complete the sale, and in fact they did so finally in their letter P. 10 of July 4, 1956, to the plaintiffs in which they gave the plaintiffs one week from the date of the receipt of that letter within which to complete the sale transaction, said clearly that if the plaintiffs did not do so, the agreement of sale shall stand terminated. The plaintiff did not do so. So the learned Judge was of the opinion that the defen- dants were right in terminating the contract of sale. It is on these considerations that the learned trial Judge has dismissed the claim of the plaintiffs for specific performance of the contract of sale. The plaintiff did not do so. So the learned Judge was of the opinion that the defen- dants were right in terminating the contract of sale. It is on these considerations that the learned trial Judge has dismissed the claim of the plaintiffs for specific performance of the contract of sale. He has also disallowed their claim for damages in the amount of Rs. 15,000. 00for the reason that they werenot ready and willing to complete the contract of sale and the defendant were right in terminating that contract after hav- ing defined time to complete the contract which the plaintiffs did not do. The learned Judge gave a decree for refund of the earnest money of Rs. 7,5001- to the plaintiffs and as such was conceded by the defendants in their written statements. I have not reproduced all the issues settled by the learned Trial Judge and the decisions given by on the same because the argument in this appeal has, been somewhat narrower, not based on all the defences urged by the defendants in their written statements. ( 8 ) THERE is the question whether the defendants are bound by the variation of the original agreement of sale by the letter P. 7 of August 11, 1955, and the learned trial Judge has found in this respect for the defendants that they arc not bound by it, Chuni Lal Sabharwal defendent has had to admit his si;, natures on this letter and Inder Raj Sabharwal defendant has also had to admit that is signed by his father. The statement of Chuni Lal Sabharwal defendant before the issues that his son and he signed a blank paper is patently not true and there is nothing to support this. The case of the plaintiffs had been that though earlier the two defendants had approached the father of the plaintiffs for change in the date of completion of the contract of sale, but on August 11,1955, it was Chuni Lal Sabharwal defendant alone who came with this typed letter. The father of the plaintiffs suggested certain modifications and corrections which were made and those were initialed by Chuni Lal Sabharwal defendant and Kailash Chandi-a Chandick pjaintiff. This Jast mention plaintiff is not a witness in the case. Chuni Lal Sabharwal defendant does not admit this. The father of the plaintiffs suggested certain modifications and corrections which were made and those were initialed by Chuni Lal Sabharwal defendant and Kailash Chandi-a Chandick pjaintiff. This Jast mention plaintiff is not a witness in the case. Chuni Lal Sabharwal defendant does not admit this. There is the evidence of Dev Dutt (P. W. 3) and Kewal Ram (P. W. 5)that this letter was passed by Chuni Lal Sabharwal defendant to the plaintiffs :in their piesence on August II, 1955. There are reitain discrepancies in the statements of these witnesses, but on the whole there is no particular reason why the witnesses should not be believed, the discrepancies not heilig of a naturial nature. So that there cannot be any doubt that on August 11, 1955, Chuni Lal Sabharwal defendant did gave the letter to the plaintiffs. He signed it for himself and on behalf of his son, Inder Raj Sabharwal defendant. It is not a document which was intended to be signed by both the defendants, and for this reason the learned trial Judge was not right in rejecting it relying upcn Shasami Chetii v. Savagan Chetii" and Marha Singh v. Mohamad Umar^ in which it was held that a document purporting to have been executed by a number of persons but signed only by one of them, was not a complete and a perfected document, because this letter P. 7 does not say that it was to be signed by both the defendants. If plaintiffs made a belated attempt at the trial to show that Chuni Lal Sabharwal defendant is the Karta of the joint Hindu Family of the plaintiffs, but there is no evidence in support of this. There is no proof of written authority with Chuni Lal Sabharwal defendant to sign this on behalf of his son Inder Raj Sabharwal defendant as document altering the conditions of the original agreement of sale P. 6. But the conduct of Inder Raj Sabharwal defendant leaves not a shread of doubt that he has accepted this letter P. 7 of August 11, 1957, as one on his b half as well. But the conduct of Inder Raj Sabharwal defendant leaves not a shread of doubt that he has accepted this letter P. 7 of August 11, 1957, as one on his b half as well. In reply to defendants notice P. 8 of June 15, 1956, calling upon the plaintiffs to complete the sale within a week of the recsipt of that notice", the plaintiffs in their letter P. 9 of June 20, 1956, reproduced verbatim the letter P. 7 of August II, 1958, signed by Chuni Lal Sabharwal defendant for himself and on behalf of his son Inder Rij Sabharwal defendant. The counsel for the defendants followed by letter P. 10 of July 4, 1956, as a reply to plaintiffs letter P. 9. This lettsr P. 10 is by the counsel for and on behalf of both the defendants. In this it is first stated by the defendants that in the contents of letter P. 7 it appeared to them to have been speci- fically stated that it would take about a month from August 15, 1956, to obtain the requisite sanction and that in spite of that the sanction had not been coming forth by then. It is therefore stated in P. 10 that the defendants did not admit the correctness, validity or enforceability of the contents of the letter P. 7 of August II, 1955, and having said so they made an offer to the plaintiffs still to complete the sale. It is thus clear that for and on behalf of the defendants the very existence of the letter which was never denied,and all that was said was that the defendants did not admit the correctness, validity or enforceability of its contents. If the letter P. 7 never passed from the defendants to the plaintiffs, it could have been specified and definitely said so, and if it was not accepted by Inder Raj Sabharwal defendant to have been on his behalf also, that too could have been specifically and definitely stated in P. 10. When again the stand of the plaintiffs was reiterated in their letter P. II, of July 12, 1956, the letter of the counsel for the defendants P. 12 of August 24, 1956, does not specifically touch upon this matter, but harps upon the plaintiffs having committed breach of the contract. When again the stand of the plaintiffs was reiterated in their letter P. II, of July 12, 1956, the letter of the counsel for the defendants P. 12 of August 24, 1956, does not specifically touch upon this matter, but harps upon the plaintiffs having committed breach of the contract. The corres- pondence leads to an irresistible conclusion that Inder Raj Sabharwal defendant never thought of denying that this letter P. 7 was given by his father Chuni Lal Sabharwal defendant to the plaintiffs on his behalf without authority, and all that was pressed was that the contents of the letter were not correct, valid or onforceable. It is necessary to take note that the plaintiffs letter P. 9 of June 20, 1956, in which" the letter P. 7 of August 11,19 ^ 5, is reproduced verbation, Was before the defendants when they filed their first joint written statement on January 14, 1957. They deny in this written statement the avernment by the plaintiffs with regard to the letter P. 7 of August II, 1955, in paragraphs 3 and 4 of the plaint. Inder Raj Sabharwal, defendant never said in that written statement that he was not bound by the letter P. 7 of August II, 1955, because his father Chuni Lal Sabharwal defendant had no authority on his behalf to sign it. As stated, this letter P. 7 was put to Chuni Lal Sabharwal defendant on January 30, 1957, When his state- ment was taken before the settlement of issues, but it was not until July II, 1957, and after three witnesses for the plaintiffs had been examined, that this defendant moved an application for amendment of the written statement on his behalf. It was in the amended written statement that he came to deny that he never signed the letter P. 7, or that his father had the authority tosign it for him. It appears evident that this was a belated shift by him. When all this is taken into consideration cumula- tively, the conclusion is evident that Inder Raj Sabharwal defendant accepted what was done by his father Chuni Lal Sabharwal defendant by letter P. 7 of August II, 1955. So the conclusion of the learned trial Judge that the defendants are not bound by this letter P. 7 cannot be sustained. They are bound by ir. So the conclusion of the learned trial Judge that the defendants are not bound by this letter P. 7 cannot be sustained. They are bound by ir. ( 9 ) IN the plaint and in the two replications, one after the first written statement of the defendants and the other after the second written statement of Inder Raj Sabharwal defendint, the plaintiffs have persisted in saying that they were ready ani willing to perform their part of the agreement of sale. Of tha plaintiffs only Romesh Chandra has appeared as P. W. 6 and he has stated in clearest manner that they were not prepared to complete the contract of sale without the defen- dants having first obtained sanction of the Government to sell the property. So not only is it clear from the correspendence between the counsel of the parties detailed above but it has been definitely stated by plaintiff Romesh Chandra (P. W. 6) that the plaintiffs, in spite of demands by the defendants to complete the contract of sale, refused to do so until the defendents secured sanction from the Ministry of Reha- bilitation for sale of the property. They refused to complete the sale even after the notice P. 10 of July 4, 1956, by the defendants fixing one week as the time within which they were required to complete the sale from the date of the receipt of that notice. The question then is were the plaintiffs, in the circumstances, ready and willing to complete the contract of sale all time and were they justified in refusing to do so until the defendants obtained sanction for the transfer of the property ? The learned counsel for the plaintiffs refers to Motilal v. Nanhela, Dr. C. L. Katial v. Mrs. C. W. V. Madden*, and Mrs. C. W. V. Madden, v. Dr. C. L. Katial. ^ and contends that it was the duty of the defendants to do all things necessary to effect the transfer, which included the ob- taining of the sanction for the transfer of the property by them from the Ministry of Rehabilitation. This is correct. But neither of these cases says that on account of non-performance of such duty by a defendant, a plaintiff can refuse to complete the contract of sale. This is correct. But neither of these cases says that on account of non-performance of such duty by a defendant, a plaintiff can refuse to complete the contract of sale. In fact in both the cases the plaintiff claimed specific performance in spite of the fact that the defendant had refrained from obtaining necessary sanction for the transfer of the proparty, and the plaintiff succeeded in both the suits. These two cases deal with a position somewhat reverse to that between the present parties. In these cases the plaintiff was seeking performance of the contract all the time while the defendant denied it on the ground that there could not be transfer without sanction. In the present case the defendants were willing and ready and in fact were pressing for completion of the sale but the plaintiffs refused to complete the same until the sanction became available. So that, as such, these two cases are of no assistance to the plaintiffs. And I rather consider that they go against the plaintiffs in as much as the plaintiffs, without the availability of the sanction transfer of the property, had insisted upon completion of contract of sale, the defendants could not have resisted that. But these cases are not authority for the proposition that the plaintiffs were justified in refusing to perform their part of the contract in the absence of sanction to transfer of the property. On the present record a copy of the lease by the Ministry of Rehabilitation in favour of the defendants is not to be found, nor is there any other evidence to show that was the effect of the want of sanction for transfer of the propety in question. There is evidence that such a sanction was required, but there is no evidence that the absence of such a sanction invalidated the transfer ab initio or rendered it void. The consideration of the case between the parties has thus proceeded on this that the want of sanction meant was that the Government of India had the power of re-entry and thus the power to put an end to the lease. The consideration of the case between the parties has thus proceeded on this that the want of sanction meant was that the Government of India had the power of re-entry and thus the power to put an end to the lease. In Rajkishor Mohanty v. Banabehari Patnaik" a Division Bench of the Orissa High Court was considering a similar and a parrallel situation, and at page 297 this is the observation that appears "that while no doubt the lease cannot be transferred without the permission of the Collector, the lease is not ipso facto determined by the transfer without permission. The transfer only renders the lease liable to forfeiture and the lease is deter- mined only by the exercise of the power to re-enter. It, therefore, follows that even after the transfer and until the re-entry is made there is still a subsisting though defeasible interest in the leasehold. There is no reason why that defeasible interest cannot be the subject-matter of a sale. I can, therefore, see no objection to the decree for specific performance being granted in this case on the ground that the lease hold is not transferable without the permission of the khasmahal authorities. " It is evident then that in spite of want of sanction for transfer of the property, the plantiffs had no justification for refusal to complete the contract when the defendants were pressing for its completion all the time. As the plaintiffs had no justification to insist upon the sanction for transfer by the Ministry of Rehabilitation as a pre-condition, they cannot be said to have been ready and willing to complete their part of the contract. The learned trial Judge has so found, and, in my opinion, his conclusion is correct. But the learned counsel for the plaintiffs has pressed that P. 7 of August II, 1955, provides as a condition for the completion of the agreement of sale the obtaining of the sanction for the transfer of the property from the Ministry of Rehabilitation, and he refers to Raja Kamala Ranjan Roy v. Baijnath Bajoria", in support of this. But the learned counsel for the plaintiffs has pressed that P. 7 of August II, 1955, provides as a condition for the completion of the agreement of sale the obtaining of the sanction for the transfer of the property from the Ministry of Rehabilitation, and he refers to Raja Kamala Ranjan Roy v. Baijnath Bajoria", in support of this. No doubt if here is a pre-condition or a condition of the contract that a contract to sell will not be completed until sanction or consent of some other authority or person is not obtained and such a pre-condition or condition is for the benefit of the purchaser, then the vendor cannot insist upon performance Of the contract by the purchaser until he has obtained such sanction or. consent. But then the question arises whether on facts there is any such condition in the contract between the parties. There is nothing of the sort in the original agreement to sell P. 6. It is the case of the plaintiffs that the move for extension of time for completion of the contract of sale as given in P. 6. came fromthe defendants, who consequently gave the plaintiffs the letter P. 7 of August II, 1955. So that it were the defendants who were seeking extension of time for completion of the contract. It was they who said that "since it will take about a month more to obtain sanction of the Rehabilitation Ministry, the execution of the sale deed by us cannot be completed without the said sanction. It is hereby mutually agreed between us orally that the period for execution the said sale deed shall remain extended till the time of the receipt of the said sanction and we hereby confirm the said oral agreement. " There is nothing in these words which gives the least indication that the plaintiffs made it a condition of the contract that until the defendants obtained sanction for the transfer of the property, they would not take the sale or complete the contract. " There is nothing in these words which gives the least indication that the plaintiffs made it a condition of the contract that until the defendants obtained sanction for the transfer of the property, they would not take the sale or complete the contract. This part of letter P. 7 which alone deals with this aspect of the matter, rather speaks against this contention of the plaintiffs, for all that it mean is that the defendants indicated their in- ability to complete the contract for want of sanction from the proper authorities and in the wake of that inability they asked for extension of time to complete the contract. To that the plaintiffs agreed. It was what was proposed or offered by the defendants that was accepted by the plaintiffs. The reference to the want of sanction for transfer of the pro- perty in the letter P. 7 is not reference to this matter to make it a condition of the contract between the parties, but only as a reason given by the defendants for extension of time for completion of the contract. So it is not true that it was the condition of the contract between the parties that the plaintiffs were not to take the sale or complete the contract of sale until the defendants had obtained sanction of the Ministry of Rehabilitation for transfer of the property. It has already been shown on the three cases cited on behalf of the plaintiffs that in spite of want of such sanction, the plaintiffs could have successfully insisted upon the completion of the contract of sale, but instead they refused to complete it. It appears thus at page 850 of Raja Kamala Ranjan Roy s case that where consent of another party is necessary for completion of sale or sanction of authority is necessary for that purpose, that may amount to a defect in the title of the seller, in this case the defendants, but if the purchaser, in the present case the plaintiffs, agrees to accept the transfer without making it a condition of the contract that the vendor shall, before comple- tion, obtain the requisite consent or sanction, he cannot subsequently on his own intiative make such a condition as a term of the contract unilaterally. There is another aspect of this approach on the side of the plaintiffs. There is another aspect of this approach on the side of the plaintiffs. The evidence of plaintiffs Romesh Chandra (P. W. 6) shows that in the beginn- ing the plaintiff s did no more than to see the letter of allotment D. I. They did not make any other enquiry about the nature of the title of the defendants. D. I made it clear to them (i) that a lease of the plot in question was being given to the defendants, and (ii) that it was being given to the defendants by the Govemment of India. This by itself must have put the plaintiff on guard to probe into the nature of the title of the defendants, unless it is to be accepted that they knew the nature and the extent of the title of the defendants, and with that knowledge they entered into the contract in which case they cannot now be heard to say that they never had it in mind that they would not complete the con- tract or accept the contract without the defendants first obtaining the sanction for transfer of the plot. In fact it is in the evidence of this witness that in the beginning the defendants gave them to understand that they had a complete transferable title. Surely the plaintiffs** correct. In any case, the witness further admits that in August 1955 they came to know of this defect in the title of the defendants. It follows that that must have been before August II, 1955, the date of the letter P. 7. The reason is that it were the defendants who made a move for the extension of time for the completion of the contract of sale because they said the sanction was not forthcoming, the pllintiil taking no initiative in this respect. But there is a little more than this in the evidance of this witness. He admits that in the month of August, :ind earlier he said in the month of November, 1955, the defendants showed a Government notification to the plaintiffs that after payment of the lease money and obtaining the sale deed an allottee could alienate the property obviously leased to him. He admits that in the month of August, :ind earlier he said in the month of November, 1955, the defendants showed a Government notification to the plaintiffs that after payment of the lease money and obtaining the sale deed an allottee could alienate the property obviously leased to him. If there was any such notification and the defendant had the right to sell the property, it seems rather incomprehensible why the plaintiffs still continued refusing completion of the contract of sale on the pretext that the defendants must first obtain sanction from the Ministry of Rehabilita- tion for the sale of the plot before they would agree to complete the contract. So that the plaintiffs were not ready and willing to perform their part of the contract unless and until tlie defendants obtained sanction for the sale of the property from the proper authority, and as they had no right to insist upon this, so they were. in default in not completing the contract. ( 10 ) THERE is then and argument on the side of the defendants that the plaintiffs had not the amount of Rs. ]5,coo. 00with them, and, there- fore, they were making excuses to put off the completion of the sale. The agreement to sell, P. 6, is dated July 18, 1955, and the notice whereby in the end the defendants gave the plaintiffs one week within which to complete the contract of sale, thus making time the essence of the contract is P. 10 of July 4, 1956. The interval is of about a year less. just a few days. The statement of account of the father of the plaintiffs is P. 1. It show that only once between July 18 and December 31, 1955, on December 24, did the plaintiffs father have in his account a little over Rs. 15,000. 00 but thereafter, an amount of Rs. 16,000. 00 and odd having been withdrawn between January 25 and March 5, 1956, the plaintiffs father never had anything near Rs. 15. 000. 00 in his bank account. It is in the evidence of plaintiff Romesh Chandra (P. W. 6) that they had an amount of Rs. 40,000. 00 at their house but he admits that neither he nor his father had anything something likeRs. 15,000. 00 with them in any bank-account other than to which reference has already made. 15. 000. 00 in his bank account. It is in the evidence of plaintiff Romesh Chandra (P. W. 6) that they had an amount of Rs. 40,000. 00 at their house but he admits that neither he nor his father had anything something likeRs. 15,000. 00 with them in any bank-account other than to which reference has already made. They had no other in- come except from a family limited company, but it is not clear that there was any substanted amount in the account of the company. This plaintiff then admits that they never tendered the amount of Rs. 15,000. 00 to the de- fendants. He is unable to explain the souree of Rs. 40,000. 00 which he says that they had in their house. It from his evidence that when they paid Rs. 7,500/ as earnest money to the defendant that was not brought from the home. This evidence about their having the amount of Rs. 40,000. 00 at home is not satisfactory. So that there is substance in the argument on the side of the defendants that the plaintiff had not the balance of the amount with them to complete the contract of sale and that was the reason why they were putting off the matter in spite of repeated demands by the defendants on them to complete the contract. This further supports the conclusion that the plaintiffs were not ready and willing to perform their part of the contract. ( 11 ) IN their joint written statement the defendants never pleaded that initially time was the essence of the contract. It is generally not so in the case of contracts relating to immoveable property unless the parties express a clear intention to the contrary. In this case no such clear intention to the contrary is expressed. The time stated in the original agreement of sale P. 6 was extended even at the instance of the defendants. Subsequent correspondence between the parties shows that the defendants continued agreeing to the extension of time for completion of the contract. Inder Raj Sabharwal defendant as DWI has clearly stated that they were agreeable to sell the property even to the date of suit provided the plaintiffs paid the remainder of the consideration for the sale. Subsequent correspondence between the parties shows that the defendants continued agreeing to the extension of time for completion of the contract. Inder Raj Sabharwal defendant as DWI has clearly stated that they were agreeable to sell the property even to the date of suit provided the plaintiffs paid the remainder of the consideration for the sale. So that the conduct of the parties is clear evidence in this case that in the beginning the time was not the essence of the contract. But even when that is as in this case, a party not in default can expressely make time as essence of the contract by a subsequent notice or demand upon the party in default. In the present case the defaulting paity are the plaintiffs and consequently notice P. 10 of July 4, 1956 gave them one week, from the receipt of it, within which to complete the contract, but the plaintiffs failed to do so. The defendants had trigh the to make time as essence of the contract by this notice. The plaintiff not having completed the cont- ract within the time given in the notice, the contract come to an end. ( 12 ) IT has, however, been further urged by the learned counsel for plaintiffs, with the reference to section 18 (a) and (b) of the Specific Relief Act, 1877 (Act I of 1877 ). . that the defendant having subsequently obtain- ed sanction of the Ministry of Rehabilitation for transfer of the property they have no right to resist their claim for specific performance. But this right cannot be pressed by the plaintiffs because (a) they have been found not to have been ready and willing to complete the contract, and (b) the defendants having made by a subsequent notice time as essence of the contract and the plaintiffs not having completed the contract within that time, the contract came to an end. In this situation the plaintiff? cannot have the benefit of section 18 of the said Act. ( 13 ) THERE is yet another aspect of the conduct of the plaintiffs which to my mind, disentitles them to a decree for specific performance in this litigation at this stage. The learned trial Judge made a decree for Rs. 7. 500. 00 in favour of the plaintiffs. This amount was ^the earnest money of which the plaintiffs had claimed refund. The learned trial Judge made a decree for Rs. 7. 500. 00 in favour of the plaintiffs. This amount was ^the earnest money of which the plaintiffs had claimed refund. In addition the plain- tiffs claimed damages to the tune of Rs. 10. 000. 00. This claim was dis- allowed. While this appeal has been pending, so it was stated at the bar, the plaintiffs have executed the decree under appeal, and by attachment have obtained in Court Rs. 7,5001- in that execution. They have, therefore acted so as to lead to the satisfaction of the decree as it is. The learned counsel for the plaintiffs contends that they have not withdrawn the money from the Court and as it is still lying in the executing Court, it cannot be said to have come into their hands. This position is not correct. Once the executing Court has realised the amount in question, through a compulsive process, under a decree, then the decree, holder cannot turn round and say that the sum so realised in execution of the decree is not in his hands while it is still lying in the executing Court. In Natesa Ayyar v. Mangalathammal", the learned Judge held that the custody by the Court of the money collected by it executing a decree, is entirely on behalf ofthe decree-holder and there is no other owner of it. The plaintiffs have thus by execution of the decree brought it to satisfaction. In other words, they have accepted the alternative relief of the refund of earnest money in satisfaction of their claim. Their claim to damages has rightly been disallowed by the learned trial Judge because breach of the contract has occurred on their part and they are the defaulting party. So they cannot claim specific performance, in the circumstances, having executed the decree as it is. Suppose they had initially just sued for refund of the earnest money and for damages, and having succeeded in that suit had obtained decree for the refund of the earnest money, they could not subse- quently have pursued their right to the specific performance of the contract, as a purchaser can, when he fails in a suit for specific performance of the contract, proceed to sue the vendor for refund of the earnest money. The position of the present plaintiffs, having executed the decree, is analogous. The position of the present plaintiffs, having executed the decree, is analogous. In any event, in such a situation, the plaintiffs are not entitled to a decree for specific performance of the contract. It has already been stated that they have no right to any damages, the breach of the contract having occurred on their part. So far as the question of their claim of the refund of the earnest money is concerned, they have not only obtained a decree in this respect but have also successfully executed it. It is evident that on the considerations stated the plaintiffs do not succeed in this appeal. ( 14 ) THERE is one other aspect of this litigation to which reference may be made at this stage. The trial Court dismissed the suit of the plaintiffs on March 30, 1959. On April 6, 1959, the defendants transferred the plot in question in favour of Padma Devi Bagga, daughter of Chuni Lal Sabharwal defendant and sister of Inder Raj Sabharwal defendant. The plaintiffs filled their appeal on May 8, 1959. They moved an application with it impleading Padma Devi Bagga as respondant 3. The learned counsel for this respondant refers to section 27 (b) of Act I of 1877 and contends that this respondant is a transferee value who had paid her money in goods faith and without notice of the original contract. The learned counsel says that mere relationship is no evidence that the transfer was not made in good faith. Now, good faith is ordinarily a question of fact and if this matter had to be gone into, the partics might well have wanted to lead evidence in regard to this. But no such claim has been made by or on behalf of this respondant at the hearing of this appeal. All that has been urged is that she took the transfer in good faith. This, in the circum- stances of the case and the close relationship of this respondant with the two respondants, is hard to accept. Therefere, if anything turned on that this position on the side of this respondent could not possibly have been accepted. However in view of this conclusion reached above, the question to my mind does not really arise. ( 15 ) THE result is that the plaintiffs appeal fails and is dismissed with costs. ( 16 ) I agree.