S. A. MASUD, J. ( 1 ) THIS is a suit for specific performance of an agreement for sale of a plot of land comprising an area of 5 cottahs, 9 chataks, between the plaintiffs and the defendants and also for a decree for Rs. 3, 380 as damages and also for an order that the defendants do execute a bond of indemnity in respect of the said agreement and the costs etc. According to the plaint, by a written agreement for sale dated June 20, 1960, executed within the jurisdiction of this Court, the plaintiffs agreed to purchase from the defendants and the defendants agreed to sell to the plaintiffs premises No. 37/1, Hindusthan Road, Ballygunge, Calcutta, outside the jurisdiction of this Court. The relevant terms under the said agreement may be stated as follows: (a) The plaintiffs shall pay Rs. 1,001 as earnest money at the time of the execution of the agreement and the balance price is to be paid at the time of execution of the conveyance. (b) The defendants shall make out a good and marketable title and shall complete the transaction on approval of title of the said property by the plaintiff's Solicitor. (c) The transaction shall be completed within a period of three months from the date of the delivery of the title deeds by the defendants to the plaintiff's Solicitor. (d) In the event of defendant's failing to make out a good and marketable title, the defendants shall refund the said earnest money of Rs. 1,001 and shall also pay the costs of and incidental to the investigation of the title and of the said agreement which was settled at Rs. 150 and also actual costs out-of-pocket expenses to be incurred by the plaintiffs. (e) If after approval of the title by the plaintiff's Solicitor the defendants fail to execute the necessary conveyance, the plaintiffs would be entitled to sue for specific performance of the contract and / or for damages. The plaint, after reciting the said terms of agreement, states that in pursuance of the said agreement for sale the plaintiffs paid to the defendants the sum of Rs. 1,001 by way of earnest money. The time for completing the transaction was for mutual conveyance of the parties agreed to be extended from time to time until the end of the month of April, 1961. 1,001 by way of earnest money. The time for completing the transaction was for mutual conveyance of the parties agreed to be extended from time to time until the end of the month of April, 1961. It is alleged that the defendants agreed to execute a deed of indemnity in respect of the title deeds of the said property inasmuch as the original documents of title were destroyed by fire, according to the defendants. The plaintiffs Solicitor on or about August 25, 1960, sent the usual requisitions-on-title to the defendant's Advocate, but on or about November 23, 1960, the defendants through their Advocate returned the said requisition-on-title and wanted to avoid the performance of the said agreement for sale on account of some unpleasant situation in the defendant's family. The plaint further alleges that on or about April 12, 1961, the draft conveyance was sent to the defendants for approval and return of the same, but the defendants failed and neglected to do so. The plaintiff's asked the defendants specifically to perform the said agreement, but the defendants refused to do so. It is stated that the plaintiffs at all material time were and still are ready and willing to perform their part of the said agreement and to complete the conveyance. The plaintiffs have also asked for a decree for the sum of Rs. 3,380 as damages on the basis of reasonable letting value of the said premises at the rate of Rs. 300 per month and also as loss of interest at the rate of 6% per annum on the consideration money kept idle with effect from June 20, 1960. ( 2 ) THE material parts of the written statement are stated below: The defendants never agreed to execute a deed of indemnity in respect of the title of the defendants to the said premises. The defendants state that neither the title deeds nor any answer to any requisition-on-title was given to the plaintiff's Solicitor. It is also stated that the approval of the title by the plaintiff's Solicitor was conditional and as such, amounted to rejection of title of the defendants by the plaintiffs. The defendants state that neither the title deeds nor any answer to any requisition-on-title was given to the plaintiff's Solicitor. It is also stated that the approval of the title by the plaintiff's Solicitor was conditional and as such, amounted to rejection of title of the defendants by the plaintiffs. The defendants admitted that on account of some family disputes in respect of the said property they wrote a letter through their Advocate dated November 23, 1960, informing the Solicitor for the plaintiffs that it would not be possible for them to proceed with the said agreement for sale. In the said letter the defendants also offered to return the earnest money and pay the actual costs incurred by the plaintiffs. Immediately, thereafter, there was a talk of settlement between the parties and the plaintiffs at the request of the defendants agreed to treat the said agreement as abandoned. By a letter dated November 28, 1960, the plaintiff's Solicitor wrote to the Advocate for the defendants demanding a sum of Rs. 5,400 in full settlement of their claim. The defendants considered the said demand of Rs. 5,400 as exaggerated ad as such, refused to pay the same. The defendants orally, as well as by their Advocate's letter dated November 23, 1960, offered to put an end to the said agreement which was accepted by the plaintiffs. Under the circumstances the defendants did not answer to the requisition-of-title and there was no occasion for the plaintiffs to send the draft conveyance on or about April 12, 1961, as alleged. The defendants have denied that there was any extension of the date of performance of the agreement of alleged in para 9 of the plaint. The plaintiffs by their said letter dated November 28, 1960, admitted that pecuniary compensation for the non-performance of the said agreement would afford adequate relief to them and that such compensation could be easily assessed or ascertained in terms of money. The plaintiffs, therefore, are not entitled to specific performance of the said agreement and the defendants are not bound to execute the conveyance. The defendants have denied also the plaintiff's claim of the said sum of Rs. 3,380 or any other sum as damages by way of reasonable letting value of the said property or as loss of interest. The plaintiffs, therefore, are not entitled to specific performance of the said agreement and the defendants are not bound to execute the conveyance. The defendants have denied also the plaintiff's claim of the said sum of Rs. 3,380 or any other sum as damages by way of reasonable letting value of the said property or as loss of interest. It is also stated that the Court has no jurisdiction to try or entertain this suit inasmuch as this suit is a suit for land situated outside the jurisdiction of this Court. The issues were settled as follows: (i) Was there any agreement for execution of deed of indemnity as alleged in para 5 of the plaint? (ii) Was there any approval of tile as alleged in para 6 of the plaint? If so, what is the effect thereof? (iii) Did the plaintiffs agree to treat the said agreement as at an end? (iv) Was there any extension of time as alleged in para 9 of the plaint? Was the month of April, 1961, a reasonable time? (v) Did the plaintiffs send the draft conveyance as alleged in para 10 of the plaint? If so, did the defendants and/or their Advocate fail and/or neglect to return the said draft. (vi) Are the plaintiffs entitled to specific performance of the said agreement or are the defendant bound to complete the said transaction as alleged in para 13 of the plaint? (vii) Has this Court jurisdiction to receive or try to determine this suit? (viii) Did the plaintiffs admit that pecuniary compensation only would afford adequate relief and if so, can such compensation be easily assessed or ascertained as alleged in para 14 of the written statement? (ix) To what relief, if any, the plaintiffs are entitled? ( 3 ) IT is not disputed that the agreement for sale of the premises No. 37/1, Hindusthan Road, Ballygunge, Calcutta, was executed within the jurisdiction of this Court. Admittedly the property was situated outside the jurisdiction, of this Court, but the plaintiff No. 1 has stated that the agreement for sale of the said premises was executed at premises No. 8a, Beadon Street, Calcutta, within the aforesaid jurisdiction. The defendants, on the other hand, have admitted that the agreement was executed between the parties at premises No. 11, Goabagan Street, Calcutta. The defendants, on the other hand, have admitted that the agreement was executed between the parties at premises No. 11, Goabagan Street, Calcutta. The said two premises, situate within the jurisdiction of this Court, are very close to each other and are places where either or more of the defendants used to reside at the relevant time. The said agreement for sale dated June 20, 1960, (Ex. A) is an admitted document. Although various issues were raised, the substantial issue of fact is whether the plaintiffs accepted the proposed offer of the defendants to terminate the said agreement for sale. I, therefore, propose to discuss the issue No. 3 first. ( 4 ) ACCORDING to the defendants, Sri Panchu Gopal Ganguly, Advocate, wrote on their behalf to Sri N. N. Bhattacharjee, Solicitor for the plaintiffs, on November 23, 1960, whereby the said Advocate offered to refund the earnest money and the actual costs incurred by the plaintiffs inasmuch as on account of some unpleasant situation in the family, it would not be convenient for the defendants to proceed with the said agreement for sale. This letter (Ex. E) is an admitted document and in this letter I find that at the bottom it is written 'enclo : Requisitions-of-title'. The said letter has been tendered without the said enclosure. This letter shows that until November 23, 1960, there was no question of any cancellation or rescission of the agreement for sale. This letter also corroborates the plaintiffs' case that in performance of the said agreement for sale the plaintiff's Solicitor did send the requisitions-of-title to the defendants. The reply to this letter given by the plaintiffs' Solicitor to the defendants' Advocate Sri Ganguly has been strongly relied on by Mr. Panja, the learned Counsel for the defendants. This document (Ex. E) is also in admitted document. The letter reads as follows:- 28th November, 1960 URGENT Sri Panchu Gopal Ganguly, Advocate Dear Sir, Re : Premises No. 37/1, Hindusthan Road My clients were surprised to receive your letter dated 23rd instant returning the original requisition-of-title made by me unanswered by your clients after three or four months. My clients have suffered and are still suffering heavy loss in the shape of loss of interest on the purchase money which they kept ready at home for nearly 6 months, agreed costs of Solicitor and costs of investigation and searches. My clients have suffered and are still suffering heavy loss in the shape of loss of interest on the purchase money which they kept ready at home for nearly 6 months, agreed costs of Solicitor and costs of investigation and searches. On receipt of your letter under reply, there had been a talk of compromise and my clients will without prejudice to their usual right accept a sum of Rs. 5,400 (Rupees five thousand and four hundred) only in full settlement of the matter if your clients pay the said amount in course of this week. Otherwise my clients have instructions to proceed against your clients for specific performance, breach of contract, damages, etc. Thanking you, Yours faithfully, Sd/- N. N. Bhattacharjee It is clear from the first paragraph of this document (Ex. E) that the proposal of the defendants to terminate the said agreement for sale on their willingness to refund the earnest money and to pay the actual costs incurred by the plaintiffs was not accepted by the plaintiffs. There is not doubt that there was a talk of settlement between the parties regarding the termination of the agreement. But there is no positive evidence to justify the conclusion that the negotiations on the talk of settlement in fact resulted in a settlement. It is extra-ordinary that the defendants or their lawyer did not think it necessary to incorporate or to record the terms of settlement in a letter or document. Sri Ganguly has stated that as the parties did not take any active steps in proceeding with the agreement for sale, there must have been a termination of the contract. In my view, the documents (Exs. E and F) indicate that the talk of settlement did not materialize. The absence of any letter from either party recording the termination of the said agreement for sale supports the plaintiff's case that the agreement for sale did not come to an end. Admittedly the plaintiffs have sent requisitions-of-title but the defendants returned the same unanswered. There is, however, conflict of evidence on the point whether the draft conveyance or the notice demanding specific performance was at all sent by the plaintiffs to the defendants. Admittedly the plaintiffs have sent requisitions-of-title but the defendants returned the same unanswered. There is, however, conflict of evidence on the point whether the draft conveyance or the notice demanding specific performance was at all sent by the plaintiffs to the defendants. According to the plaintiffs, they not only sent the requisitions-of-title and draft conveyance bas referred to in the letter dated November 23, 1960, and letter dated April 12, 1961, respectively but also they in their notice of demand dated August 3, 1961, informed the defendants that they approved the title of the said premises No. , 37/1, Hindusthan Road, Calcutta, and asked the defendants to execute and register the deed of conveyance. The notice of demand (Ex. G) was alleged to have been sent on August 3, 1961, and the present suit was instituted on October 5, 1961. The plaintiff Ajit Kumar Bose has clearly stated that the draft conveyance was sent to the defendants and I have no reason to disbelieve his evidence on this point. According to them the draft conveyance was sent by letter dated April 12, 1961. But the draft conveyance has not been tendered nor the dispatch of the said letter to Sri Ganguly was proved. The Solicitor, Mr. N. N. Bhattacharjee, who sent the letter, is no longer acting on behalf of the plaintiffs and he has given evidence of receiving a letter from the plaintiffs. The said Mr. Bhattacharjee did not maintain a day book and he has deposed that he had sent the letter by ordinary post. Similarly, the notice dated August 3, 1961, was also sent by D. P. Sarbadhikari and Co. by ordinary post. Sri Ajoy Das, on behalf of D. P. Sarbadhikari and Co. , the present Solicitor of the plaintiffs, has stated that the words 'registered with A/d' in the copy of the notice disclosed by them in the brief of documents is a mistake. Mr. Panja has wanted me to hold that the letter dated April 12, 1961, and the notice dated August 3, 1961, were never sent to his clients and they were introduced in this case to explain the long interval of time between November, 1960, when there was settlement and October 5, 1961, when the suit was instituted. Mr. Panja has wanted me to hold that the letter dated April 12, 1961, and the notice dated August 3, 1961, were never sent to his clients and they were introduced in this case to explain the long interval of time between November, 1960, when there was settlement and October 5, 1961, when the suit was instituted. He has relied on the evidence of Sri Ganguly who has deposed that there was settlement between the parties in respect of the transaction and the fact that the parties did not take any interest in the matter after November, 1960, substantiates the defendants case that the agreement came to an end. But Sri Ganguly has clearly stated that after March, 1961, he did not take any interest in the matter as he joined his new post under the Port Commissioners, Calcutta. Sri Ganguly has nowhere stated that he has personal knowledge about the fact that the agreement did come to an end although he was the person who was acting on behalf of the defendant until March, 1961. Further, Sri Ganguly naturally could not possibly say what happened after March, 1961. The substance of his evidence is that a talk of settlement was made and the plaintiffs at one stage willing to terminate the agreement for sale on payment of compensation money; but he could not positively state whether in fact there was any rescission of contract or not. His conclusion that the contract was rescinded could only be an inference or a guess work. He has admitted that he advised his clients to reply to the letter dated November 28, 1960, regarding the terms of settlement proposed by the plaintiff's Solicitor Sri N. N. Bhattacharjee, but the defendants did not choose to give any instruction to him accepting the said proposed terms. Thus, it is clear from the evidence of Sri Ganguly that the settlement did not materialize. Sri Biren Biswas has also denied receipt of any draft conveyance or any notice of demand. But he has not also explained why he or the defendants or their lawyer did not reply to the letter dated November 28, 1960, accepting the terms of settlement proposed by the plaintiffs. Sri Biren Biswas has also denied receipt of any draft conveyance or any notice of demand. But he has not also explained why he or the defendants or their lawyer did not reply to the letter dated November 28, 1960, accepting the terms of settlement proposed by the plaintiffs. On the contrary, the evidence of Sri Biswas is to the effect that there was difference of opinion as to the amount of compensation to be paid to the plaintiffs in consideration of their agreeing to rescind the contract. According to Sri Biswas a sum of Rs. 2,000 in addition to Rs. 1,001 was agreed to be paid by the defendants whereas the plaintiffs as proposed in the said letter wanted Rs. 5,400 in full settlement of the matter. In fact, Sri Biswas has given evidence that as the plaintiffs did not agree to the said sum of Rs. 2,000 proposed by the defendants, he told the plaintiff No. 1 to do whatever he like (Q. 14 ). Thus, from whichever view I examine the evidence, it is clear to me that the agreement for sale is subsisting and was not terminated. Assuming that the draft conveyance and the notice of demand were not in fact sent, it does not follow that the plaintiffs' inaction in not taking any step from November, 1960, to the date of institution of this suit justifies the conclusion that the contract was abandoned. In my view, there is no settlement between the parties to the effect that the agreement for sale would not be acted upon by either party. On this view of the matter the issue No. 3 should be answered in the negative. Issue No. 2, ( 5 ) ACCORDING to the plaintiff No. 1 the requisitions-of-title were sent to the defendants' Advocate on or about August 25, 1960 (Q. 16 ). The document dated November 23, 1960, substantiates the facts and circumstances that the plaintiffs' Solicitor sent the requisitions-of-title to the defendants' Advocate. It is a common case of the parties that the requisitions-of-title were returned by a defendants' Advocate unanswered. Ordinarily the question of the approval of title arises only when the requisitions-of-title are answered satisfactorily. The document dated November 23, 1960, substantiates the facts and circumstances that the plaintiffs' Solicitor sent the requisitions-of-title to the defendants' Advocate. It is a common case of the parties that the requisitions-of-title were returned by a defendants' Advocate unanswered. Ordinarily the question of the approval of title arises only when the requisitions-of-title are answered satisfactorily. But it is stated in para 6 of the plaint that the plaintiffs' Solicitor approved the title of the said premises subject to certain advertisements being published in newspapers and the said deed of indemnity being executed by the defendants. According to the witnesses on behalf of the defendants, at no stage, there was any talk of the execution of the deed of indemnity or advertisement being published in newspapers. In para 5 of the plaint, however, the plaintiff's have stated that there was an agreement between the parties that the defendants would execute a deed of indemnity in respect of the title inasmuch as the original documents of the title were burnt and/or destroyed. Apart from the oral evidence, there is nothing to show that the parties agreed to the execution of a deed of indemnity. Sri Ajoy Das could not possibly give any evidence as to the question of the deed of indemnity, because he was engaged as a Solicitor at a much later stage, i. e. , end of July, 1961. Mr. Biswas has admitted that the original documents of title were in fact burnt. Naturally the plaintiffs' Solicitors very reasonably might have insisted, in the interests of his client, on the advertisements of the loss in newspapers and the execution of the deed of indemnity. The defendants' definite case is that, after they returned the requisitions-of-title to the plaintiffs' Solicitor, they did not take further steps because they thought that agreement for sale was abandoned by both the parties. Thus the usual steps that are generally taken after the agreement for sale and before the execution of the conveyance naturally could not be resorted to in this case. But the fact remains that the agreement for sale was made and the requisitions-of-title were sent. For reasons stated earlier, I have already come to the conclusion that there was no settlement although talks of settlement did take place between the parties. Accordingly the agreement for sale is subsisting and effective. But the fact remains that the agreement for sale was made and the requisitions-of-title were sent. For reasons stated earlier, I have already come to the conclusion that there was no settlement although talks of settlement did take place between the parties. Accordingly the agreement for sale is subsisting and effective. Even assuming that the plaintiffs' case is false, namely, that the draft conveyance was not sent, it cannot be stated that the plaintiffs did not agree to complete the conveyance without the execution of the deed of indemnity by the defendants or their lawyer. I accept the evidence of Sri Ajoy Das who has stated that a notice of demand was sent on August 3, 1961, wherein the defendants were asked to complete the conveyance without raising the question of the deed of indemnity. The plaintiffs' Solicitor, Mr. N. N. Bhattacharjee, must have raised the question of advertisements and the deed of indemnity by way of greater protection in view of the fact that the original title deeds were burnt. But that does not mean that the defendants' case is true, that is, the plaintiffs, refused to approve the title unless advertisements were published and deeds of indemnity were executed. In any event, the plaintiffs did not insist on these two conditions in their notice of demand dated August 3, 1961, and in fact, instituted the present suit for execution of the conveyance. Those facts do not show that the plaintiffs did not approve the title. On the contrary, the plaintiff No. 1 has given evidence before me (Qq. 40, 86) that they are prepared to complete the transaction without insisting on the execution of the deed of indemnity. In my view, the conditions imposed in para 6 of the plaint were not made by the plaintiffs in the sense that without compliance with them the title would be dis-approved. The notice of demand, the oral evidence of plaintiff No. 1, show that the plaintiffs have expressed their willingness to complete the execution of the conveyance even without such advertisement in newspapers and the execution of such deed of indemnity. Accordingly I hold that the first part of this issue should be answered in the affirmative. Mr. The notice of demand, the oral evidence of plaintiff No. 1, show that the plaintiffs have expressed their willingness to complete the execution of the conveyance even without such advertisement in newspapers and the execution of such deed of indemnity. Accordingly I hold that the first part of this issue should be answered in the affirmative. Mr. Panja has also argued that as the plaintiffs did not approve the title or alternatively as the plaintiffs only approved the title conditionally, the plaintiff's right to sue for specific performance did not arise at all. In this connection my attention has been drawn to para 3, 6 and 10 of the agreement for sale (Ex. A) in support of his contention that the plaintiff's only right, at best, is to get compensation and not specific performance. This aspect of the matter I choose to discuss in details while I shall discuss issue No. 8. Mr. Panja has contended, while arguing on issue No. 2, that in view of the fact that the contents of paras 3 and 6 are contradictory in nature on a proper rule of construction in respect of non-testamentary document like the present one, contents in para 3 being prior to those in para 6, they should be given effect to in preference to the contents in para 6. In my view, paras 3 and 6 cannot be made applicable as the plaintiffs have accepted the title to the said premises as good and marketable and were and are ready and willing to execute the conveyance unconditionally. It is not the defendant's case that they made out a good and marketable title. The entire plea of the defendants is that there was settlement between the parties and the agreement for sale was given up by the parties and as such, the question of making out a good and marketable title did not ever arise. Mr. Panja overlooked this aspect of the matter and he has wanted me to took at the evidence from the point of view of the plaintiff's conduct in this matter. The plaintiff's conduct showed, according to him, that the defendants failed to make out a good and marketable title to the said premises and as such, the plaintiffs would be entitled only to get the earnest money and a sum of Rs. The plaintiff's conduct showed, according to him, that the defendants failed to make out a good and marketable title to the said premises and as such, the plaintiffs would be entitled only to get the earnest money and a sum of Rs. 150 as the settled costs of the purchasers and some actual costs incurred as out-of-pocket expenses as mentioned in para 3 of the said agreement. This aspect of the agreement may be relevant, as stated earlier, in deciding issue No. 8. In my view, the plaintiffs did not question the title at any material time; at the earlier stage they might have wanted the defendants to advertise the loss of original document in the newspapers and execute the deed of indemnity. But even such conditional approval was given a go-bye in the notice of demand dated August 3, 1961 and also by Ajit Kumar Bose's testimony before me (Q. 40 ). In my view, the plaintiffs accepted the title of the said premises and as such, the plaintiff's cause of action against the defendants under the agreement did arise. That would seem to be the natural state of affairs in view of the fact that the requisitions-of-title were sent back unanswered by the defendants and the defendants were not taking any interest in implementing the agreement for sale. There is definite evidence of Ajit Kumar Bose and N. N. Bhattacharjee that draft conveyance was sent. Assuming that the draft conveyance was not sent at all, it does not follow that the plaintiffs did not accept the title to the said premises. The agreement for sale was not rescinded nor have the defendants been able to prove that there was any settlement. The plaintiffs did not express their unwillingness at any stage to proceed with the agreement for sale both before and after this suit was filed. In any event the plaintiffs are now prepared to get the conveyance executed by the defendants. It is not the defendant's case that the plaintiffs were insisting on two conditions contrary to the terms of agreement for sale. As discussed later, the plaintiff's can relinquish their right even at the trial of the suit. In the premises, I must hold that there was approval of title by the plaintiff's and the defendant's liability under the said agreement for sale does arise. As discussed later, the plaintiff's can relinquish their right even at the trial of the suit. In the premises, I must hold that there was approval of title by the plaintiff's and the defendant's liability under the said agreement for sale does arise. Issue No. I. ( 6 ) THE plaintiffs have miserably failed to discharge the onus. In paras 5, 6 and 13 of the plaint, the definite case was made out that the defendants agreed to execute a deed of indemnity as required by the plaintiffs. There is no documentary evidence in support of such contention. In the demand notice also (Ex. C)) not a word was mentioned about the defendant's failure to execute the deed of indemnity. I cannot accept Ajit Bose's evidence on this point. At best, it could be said that they might have asked for a deed of indemnity, but that does not mean that the defendants agreed to comply with such request (Qq. 84, 93-107 ). Mr. N. N. Bhattacharjee's evidence on this point is also not very helpful. P Ganguly and Birendra Biswas who denied any such agreement were not cross-examined on this point. I accordingly answer the issue No. 1 in the negative. Issue No. 4 ( 7 ) ACCORDING to para 9 of the plaint, the time for completing the transaction was extended from time to time by mutual consent until April, 1961. It is also stated that in any event the month of April, 1961, was the reasonable time within which the transaction should have been completed. The plaintiffs have denied the said contention in para 10 of the written statement. By referring me to cls. (3), (4) and (5) of the agreement for sale Mr. Panja has argued that the parties agreed that time would be of the essence of the contract and, as such, the necessary steps should have been taken by the plaintiffs within the time mentioned in the agreement itself. The vendors were to return the requisitions-of-title within 7 days from the making thereof and the purchase was to be completed within three months from the date of delivery of the title deeds to the purchaser's Solicitor. According to Mr. Panja all these provisions in the agreement indicate clearly that although this is an agreement for sale of land, yet the parties intended that time was of the essence of the contract. According to Mr. Panja all these provisions in the agreement indicate clearly that although this is an agreement for sale of land, yet the parties intended that time was of the essence of the contract. It is settled law that ordinarily in a suit for specific performance of an agreement for sale of immovable property time is not of the essence of the contract unless a contrary intention is spelt out from the agreement itself. The learned Authors at p. 466 have made the following observations: In short, time, is of the essence of the contract even in equity if such is the real intention of the parties. Moreover, an intention to this effect may be expressly stated or may be inferred from the nature of the contract or from its attendant circumstances. By way of summary it may be said that time is essential in equity, first, if the party expressly stipulate in the contract that it shall be so; secondly, if, in a case where one party has been guilty of undue delay, he is notified by the other that unless performance is complete within a reasonable time the contract will be regarded as broken; and lastly, if the nature of the surrounding circumstances or of the subject-matter makes it imperative that the agreed date should be precisely observed. Under the last head it has been held that a date fixed for completion is essential if contained in a contract for the sale of property which fluctuates in value with the passage of time, such as, a public house, business premises or a reversionary interest. Mr. Panja has conceded that in this case the parties did not stipulate in the agreement itself that time was of the essence of the contract, but relying on the second and third conditions mentioned in the said passage, he has contended that it was the intention of the parties that the agreed date should be strictly observed. The plaintiffs not having performed their part of the contract within the agreed date cannot be allowed to complete the contract within an extended date or within a reasonable period. In my view, the principles set out in the said passage are sound propositions of law, but they have no application to the facts and circumstances of this case. The plaintiffs not having performed their part of the contract within the agreed date cannot be allowed to complete the contract within an extended date or within a reasonable period. In my view, the principles set out in the said passage are sound propositions of law, but they have no application to the facts and circumstances of this case. It is not the case of the defendants that the plaintiffs are not entitled to get a decree because the plaintiffs were guilty of undue delay inasmuch as the defendants asked the plaintiffs to comply with all the requirements in the agreement itself within a fixed date. The defendants' case is that in or about November, 1960, the entire contract was agreed to be abandoned because a settlement took place between the parties. Further cls. (3), (4) and (5) of the agreement indicate that the defendants were to comply with certain formalities like sending original documents of title, answering the requisitions-of-title, making out a good and marketable title and delivering vacant possession of the premises. In view of the plea of abandonment of the contract nothing was done by the defendants and, as such, if the plaintiffs are at all guilty of not performing their part of the contract within the scheduled dates, the defendants were responsible for the same. The defendants by their inaction left the plaintiffs with no alternative but to do whatever they could in the situation. Admittedly, on November 23, 1960, the defendants returned the requisitions-of-title sent by the plaintiffs' Solicitor unanswered on the plea that it would not be possible for them to proceed. Mr. Panja has also drawn my attention to another passage from the aforesaid text book where the learned Authors at p. 543 made the following observations:- No exact rule can be laid down as to when laches will or will not bar a claim. It is a question that depends in each case upon the degree of diligence that might reasonably have been expected from the plaintiffs, but the two important factors to be considered are acquiescence on the part of the plaintiffs and the length of the delay. Those who seek specific performance of contracts must be unusually vigilant and active in asserting their rights, specially where the subject-matter of the contract is one that fluctuates in value from day to day. Mr. Those who seek specific performance of contracts must be unusually vigilant and active in asserting their rights, specially where the subject-matter of the contract is one that fluctuates in value from day to day. Mr. Panja also relied upon the leading case of (1) Pollard v. Clayton, (1855) 1 K and J. 462 referred to by the authors, where it was held that the delay by the plaintiffs for 11 months which occurred after the plaintiffs had become aware of the breach of contract was a complete bar to their equitable claim. It may be added here that the said case was one relating to an agreement to raise and sell coal contained in a particular mine. In that case although the defendants after performing their contract in part refused to deliver any more coal and sold it to other persons. Objection was taken by the plaintiffs, but the defendants referred the matter to their Solicitors and, yet the plaintiffs waited for 11 months after their breach before they filed a suit for specific performance. In my view, decisions arrived at in the said case cannot be made applicable to the facts of the instant case. Mr. Datta, learned Counsel for the plaintiffs, has referred me to the observations of B. C. Mitra, J. in (2) Labanya Ray v. Rai Saheb Phanindra Mohan Mukherjee, (1963) 68 CWN 611 (638) to the effect that failure to keep the dates mentioned in the contract for sale of immovable property by itself cannot be a bar to grant specific performance on the plea that time is of the essence of contract. In the instant case, the agreement was entered into on June 20, 1960. Till November 23, 1960, the defendants did not repudiate the contract. On November 28, 1961, the plaintiffs made an offer to settle the dispute between the parties which was not accepted by the defendants. There is evidence to the effect that Ajit Kumar Bose and Birendra Biswas had discussions on the subject, but the parties could not agree to a settled amount. On August 3, 1961, the plaintiffs through their new Solicitors D. P. Sarbadhikari and Co. wrote a letter to them calling upon the defendants to execute and register the conveyance. As stated earlier the letter was not sent by registered post and P. Ganguly and Birendra Biswas have denied the receipt of such letter. On August 3, 1961, the plaintiffs through their new Solicitors D. P. Sarbadhikari and Co. wrote a letter to them calling upon the defendants to execute and register the conveyance. As stated earlier the letter was not sent by registered post and P. Ganguly and Birendra Biswas have denied the receipt of such letter. The letter was sent on August 3, 1961, long after P. Ganguly ceased to work on behalf of the defendants and naturally P. Ganguly could not give satisfactory evidence to that effect. Birendra Biswas also has stated that he did not receive such letter. The letter was not addressed to Birendra Biswas although Birendra Biswas in answer to my Q. 50 has stated that all steps relating to the said transaction were taken to him alone on behalf of the defendants. The letter was addressed to the defendant No. 1 with copies to other defendants and she or any of the other defendants was not called. Sri Ajoy Das, on behalf of the plaintiffs, has stated that he has duly dispatched the letter in the normal course and I accept his evidence as true. In the circumstances, I do not think there was any acquiescence or delay on the pat of the plaintiffs inasmuch as the parties were trying to come to a settled amount as to compensation in consideration of the proposed abandonment of the contract. The inaction or the length of the delay also are not of such a nature which debar the plaintiffs to ask for specific performance of the contract. In my opinion, the Specific Relief Act being a statutory enactment in India, so long as the right to sue for specific performance is not barred by law of limitation, the Court should not exercise its discretion against the plaintiffs on the ground that they were guilty of latches in not pursuing the matter for a long time unless the relief to the plaintiffs is otherwise inequitable. Further, the defendants were negotiating to settle the disputes between the parties by paying pecuniary compensation. With respect to the point that whether any extension of time was granted or not, in my view, there is no evidence that such extension was agreed upon expressly by the parties. The defendants on account of their family dispute wanted to resile themselves from completing the contract by agreeing to pay off some compensation money. With respect to the point that whether any extension of time was granted or not, in my view, there is no evidence that such extension was agreed upon expressly by the parties. The defendants on account of their family dispute wanted to resile themselves from completing the contract by agreeing to pay off some compensation money. It is true that they did not agree to extend the time, but they did not repudiate the contract either, on the ground that time for completion of contract expired. On November 23, 1960, they only proposed payment of compensation in lieu of the performance of their part. Negotiations went on as to the quantum of the compensation to be paid to the plaintiffs, but the contract was not repudiated by the plaintiff to the effect that the defendants were not bound by the contract. In my opinion, the conduct of the parties show that there was implied extension of date. The plaintiffs have stated that the time for completing the said transaction was extended till the month of April, 1961, but unfortunately the letter dated April 12, 1961, supposed to have been witted by Mr. N. N. Bhattacharjee to P. Ganguly, the defendants' lawyer, written statement not tendered. In my view, the extension of date, in any event, took place from time to time impliedly by the conduct of the parties until November 23, 1960, and I hold November 23, 1960, is a reasonable time within which the transactions could be completed. I, accordingly, answer issue No. 4 in the following way: (a) No; the extension was not made mutual consent until April, 1961 but such extension took place impliedly till November 23, 1960. (b) Question does not arise but, in any event, November 23, 1960, should be considered as a reasonable time within which the said transaction could be completed. Issue No. 5. ( 8 ) MR. Panja has urged that the draft conveyance was not tendered by the plaintiffs nor the dispatch of the draft conveyance by the plaintiffs Solicitor was proved. He has also made a comment that the documents were disclosed by the plaintiffs in their belief of correspondence showing the dispatch of the draft conveyance to the defendants, but those documents were not tendered. Mr. Bhattacharjee has given evidence that he sent the draft conveyance with a forwarding letter dated April 12, 1961, to Sri P. Ganguly, Advocate. He has also made a comment that the documents were disclosed by the plaintiffs in their belief of correspondence showing the dispatch of the draft conveyance to the defendants, but those documents were not tendered. Mr. Bhattacharjee has given evidence that he sent the draft conveyance with a forwarding letter dated April 12, 1961, to Sri P. Ganguly, Advocate. But neither the original nor the copy was tendered. Mr. Bhattacharjee has admitted that the letter was sent by a peon book, but the peon book was not produced by him. In my opinion, Mr. Panja's criticism is not without foundation. The plaintiffs could have proved the dispatch of the draft conveyance in a more satisfactory manner, but in the context of the surrounding circumstances in this case, I am of opinion that the draft conveyance was sent to the defendants. The defendants on November 23, 1960, returned the requisitions-of-title unanswered on the plea that it would not be possible for them to proceed with the transaction and naturally it is quite like that when the draft conveyance was sent to them by the plaintiffs' Solicitor they might not have taken interest in this matter. Mr. Bhattacharjee was specifically asked about this document, and in answer to Q. 24 he has stated that the draft conveyance was sent for the execution. He has also stated that he sent the draft conveyance to the defendants' lawyer (Qq. 24 and 48 ). In cross-examination he had stated that the draft conveyance was sent with a letter the copy of which he has seen in his own file (Qq. 80 and 81 ). Again in cross-examination Mr. Bhattacharjee was specifically asked if the defendant or their Advocate received any draft conveyance. To that question Mr. Bhattacharjee replied that the defendants' Advocate did receive it because he had a peon book to show such dispatch (Q. 86 ). The peon book could not be produced by him. He was not asked by the plaintiffs to produce the same. It may be added here that Mr. Bhattacharjee gave evidence on the basis of a request in writing by the plaintiffs' new Solicitor and not under a sub-poena. The defendants' Advocate Mr. P. Ganguly was categorically asked on this point which reads as follows: 66. Is it correct that you singed on a peon book of N. N. Bhattacharjee and took the draft conveyance yourself? Bhattacharjee gave evidence on the basis of a request in writing by the plaintiffs' new Solicitor and not under a sub-poena. The defendants' Advocate Mr. P. Ganguly was categorically asked on this point which reads as follows: 66. Is it correct that you singed on a peon book of N. N. Bhattacharjee and took the draft conveyance yourself? A. I cannot remember. I expected him to answer that, as he ceased to take interest in the transaction after March, 1961, there was no question of his receiving such document in April, 1961. But unfortunately he neither said so nor categorically denied the receipt of such letter. Mr. Bhattacharjee might not have shown enthusiasm in giving the best evidence on this matter in favour of his ex-client, but his evidence is consistent with the plaintiffs' conduct and the notice of demand dated August 3, 1961. It is not the case of the defendants that the plaintiffs are refusing to send the draft conveyance inspite of reminders. Nor is it anybody's case that draft conveyance was returned by the defendants or their lawyer or Mr. Biswas to the plaintiffs. Accordingly I answer the issue in the following: (a) Yes. (b) Yes. ( 9 ) ISSUE Nos. 6 and 8 will be conveniently discussed together. But before I do so, the important issue on jurisdiction of the Court may be discussed first. Issue No. 7 ( 10 ) MR. Panja's main contention on this issue is that the agreement for sale specifically provides that the vacant possession should be given after the agreement for sale and before the execution of the convedyance and the plaintiff Ajit Kumar Bose has accepted that fact when in answer to Q. 172 in cross-examination he has admitted that peaceful vacant possession is a condition precedent to the execution of the deed of conveyance. Relying on (3) Debendra Nath Chowdhury v. Southern Bank Ltd. (1960) 64 CWN 439. Mr. Panja has ably contended that in a suit for specific performance of an agreement for sale of land outside the jurisdiction of this Court, the prayers asked for in the plaint are very material in order to determine whether this Court has jurisdiction or not. Relying on (3) Debendra Nath Chowdhury v. Southern Bank Ltd. (1960) 64 CWN 439. Mr. Panja has ably contended that in a suit for specific performance of an agreement for sale of land outside the jurisdiction of this Court, the prayers asked for in the plaint are very material in order to determine whether this Court has jurisdiction or not. If the plaintiffs would have prayed for the execution of the deed of conveyance without delivery of vacant possession of land, ordinarily there would be no difficulty for the Court hearing such suit under its equitable jurisdiction. But in the instant case, according to Mr. Panja, not only this prayer was not asked for but the plaintiffs have asked for specific performance of the agreement which specifically provides for delivery of vacant possession prior to the execution of such document. Thus the grant of such prayer for specific performance would automatically involve delivery of possession of a land outside the jurisdiction and as such, following in (4) Moolji Jaitha and Co. v. Khandesh Spinning and Weaving Co. Ltd. , AIR 1950 FC 83 and Debendra Nath Chowdhury v. Southern Bank Ltd. (Supra), he has wanted me to hold that this Court has no jurisdiction to grant relief to the plaintiffs. There is great force in Mr. Panja's argument, but in the facts and circumstances of the instant case, the principles of law as argued by Mr. Panja cannot have any application. This point has often been raised in connection with the applicability of leave under cl. 12 of the Letters Patent in a suit for specific performance of the agreement for sale of a land outside the jurisdiction of the High Court and different facts on the question have been discussed historically and in great details in (5) Subject-matter. Khatun Bibi v. Smt. Lilabati Dassi, (1944) 49 CWN 80, Moolji Jaitha v. Khandesh Spinning (Supra), and also in the Bench decision of this Court in Debendra Nath Chowdhury v. Southern Bank Ltd. (Supra) I do not want to reiterate the principles once again. In my view, in a suit for specific performance of an agreement for sale of immoveable property, the plaintiff in the plaint can ask for specific performance of the agreement for sale and damages, if any, for non-performance. That kind of suit could be described as specific performance simpliciter. In my view, in a suit for specific performance of an agreement for sale of immoveable property, the plaintiff in the plaint can ask for specific performance of the agreement for sale and damages, if any, for non-performance. That kind of suit could be described as specific performance simpliciter. But the plaintiff is not prevented to ask for specific performance, possession and also damages in the same suit. In the latter case the suit must be filed within the jurisdiction of that Court where the land is situated. But such condition is not necessary in the former case, that is, in a suit for specific performance simpliciter. If the agreement for sale has taken place between the vendor and the purchaser within the jurisdiction of a Court, say the Calcutta High Court, although the land is situated outside the jurisdiction of the Calcutta High Court, the suit can be validly instituted in the Calcutta High Court with leave under cl. 12 of the Letters Patent inasmuch as the cause of action is contractual in character and, as such, a right in personam is involved. The High Court in exercise of its equity jurisdiction under the Letters Patent can hear such suit but cannot grant possession of the land in the decree. A suit for specific performance simpliciter and a suit for specific performance and possession are different suits and have different causes of action. In the former case the decree binds only the contracting parties, whereas in the latter case all parties who are in possession of the land even though they happen to be persons other than the contracting parties have got to be impleaded, and it is only when they are impleaded that the decree would bind the contracting parties and also the parties in possession. Further, a decree for title or a decree for possession create interest in the land and, accordingly, where the plaint asks for such relief it wants a decree for an interest in the land outside the jurisdiction of the Court. Thus, suit being in the nature of a suit for land can only be instituted where the land is situated. But in a suit for specific performance where possession is not directly or indirectly asked for in the decree itself if, cannot be said that an interest in the land is being sought for. Thus, suit being in the nature of a suit for land can only be instituted where the land is situated. But in a suit for specific performance where possession is not directly or indirectly asked for in the decree itself if, cannot be said that an interest in the land is being sought for. A contractual right may give rise to various other consequential rights, but such consequential rights only arise when the contractual rights are established. In a suit specific performance simpliciter the parties are only asking for enforcement of their contractual right and, therefore, no interest in the land is created. Where, however, the plaintiffs ask for more than contractual rights or in other words, where they ask for possessory rights also in the land outside the jurisdiction, it does not become simply a suit where right in personam is involved. A decree for specific performance, title or possession is a right in rem enforceable against all persons infringing such right, whereas a decree for the specific performance of an agreement is a right in personam if, of course, as stated earlier, the specific performance of such agreement does not require immediate or simultaneous possessory right also. A decree for specific performance simpliciter at best creates a right to possession and not right of possession for which a new suit may have to be filed in the Court where the land is situated. Of course, this does not mean that the right to specific performance of an agreement and possession cannot be asked for in the same suit. Only it should be remembered that in such case the suit should be instituted in the Court where the land is situated. In this connection, reference may be drawn to a passage in Debendra Nath Chowdhury v. Southern Bank Ltd. (Supra p. 448) where P. B. Mukharji, J. has made the following observation : In volume X, page 397 of Atkin's Encyclpaedia of Forms, the only prayer shown in the pleadings for specific performance and not for possession. Indeed, in the forms of the Civil Procedure Code, both the Forms are used, one for specific performance simpliciter and the other for joint claim for specific performance and possession. Indeed, in the forms of the Civil Procedure Code, both the Forms are used, one for specific performance simpliciter and the other for joint claim for specific performance and possession. A suit for specific performance simpliciter is not a suit for land unless the possessory right of the land has also be granted in the decree for specific performance, but a suit for joint claim for specific performance and possession is a suit for land and has got to be instituted in the Court in the jurisdiction of which the land is situated. ( 11 ) APPLYING these principles to the facts and circumstances of this case, I am of opinion that this is not a suit for land. I quite appreciate the criticism of Mr. Panja that the plaint should have asked for execution of the deed of conveyance and nothing else. In fact, Mr. Datta orally applied for amendment of prayers but he did not press the point. But even of the prayer was asked in that Form. Mr. Panja could have logically argued that as the agreement involved prior delivery of vacant possession even a prayer for execution of the deed in this could not avoid the mischief. But, in my opinion, cl. 6 of the agreement and the oral and other documentary evidence clearly show that the delivery of vacant possession of the premises in the instant case is not a condition precedent to the specific performance of the agreement. Clauses (5) and (6) of the agreement read as follows: (5) The purchase shall be completed within three months from the date of delivery of title deeds to the purchasers' said Solicitor subject to the vendors' making out a good marketable title and delivering peaceful vacant possession of the premises as aforesaid. (6) If the vendors fail to make out a good and marketable title to the said premises or to deliver possession as aforesaid, it shall be optional to the purchasers to rescind this contract and the vendors will thereupon forthwith refund to the purchasers the said earnest money and shall also pay the costs of and incidental to the investigation of title and of this agreement settled at Rs. 150 and actual out-of-pocket costs as aforesaid. On a proper construction of these two clauses, it seems to me that delivery of possession is not a condition but a mere warranty. 150 and actual out-of-pocket costs as aforesaid. On a proper construction of these two clauses, it seems to me that delivery of possession is not a condition but a mere warranty. It is not the intention of the parties that if the delivery of possession is not given, there will be a breach and automatic rescission of the contract. This is obvious from cl. of the agreement which reads as follows: (10) If the vendors fail or neglect to execute the necessary conveyance or conveyances as aforesaid after the title made out good and marketable as aforesaid, the purchasers will be entitled at their opinion to sue for specific performance of the contract and/or for damages. In this clause the plaintiffs are not insisting that delivery of possession has got to be given before the plaintiffs would sue for specific performance. Further, in cl. (6) it is made clear that even if the delivery of possession is not given by the vendors within three months from the delivery of title deeds, as stated in cl. (5), the purchasers have the opinion to rescind the contract. The option to rescind the contract also involves the opinion not to rescind the contract or to abide by the contract. Thus, delivery of possession even if not given to the plaintiffs does not compel the purchasers to rescind the contract. In the letter dated November 28, 1960, (Ex. F) the plaintiffs' Solicitor did not complain against the defendant's for not getting the vacant possession although six months lapsed after the agreement for sale. In the notice of demand dated August 3, 1961, (Ex. G) it is expressly stated that the plaintiffs approved the right, title or interest in the said premises. In the said notice they were not insisting on the delivery of possession. In this connection, Mr. Ajit Kumar Bose, the plaintiff No. 1, has stated in answer to Q. 86 that he is satisfied with the title deed. In fact, the plaintiffs or their Solicitor have not raised the point that the vacant possession is to be given to them after delivery of the title deeds, as provided in cl. (5) of the agreement. Ajit Kumar Bose, the plaintiff No. 1, has stated in answer to Q. 86 that he is satisfied with the title deed. In fact, the plaintiffs or their Solicitor have not raised the point that the vacant possession is to be given to them after delivery of the title deeds, as provided in cl. (5) of the agreement. Even assuming that delivery of possession is a condition in the agreement for sale, the party claiming for enforcement of his right under such agreement can relinquish a part of his right at any stage prior to the hearing of the suit unless the other party is materially prejudiced under the contract by such volte-face. This conclusion also follows from the provisions in sections 14, 15, 16 and 17 of the Specific Relief Act, 1877. It may be added here that the plaintiffs have not asked for possession at all in the plaint. For all these reasons, I hold that this is a suit for specific performance simpliciter. In the premises, I answer this issue in the affirmative. Issue Nos. 6 and 8 ( 12 ) MR. Panja has argued that in any event the plaintiffs are not entitled to the specific performance of the said agreement for sale, nor the defendants are bound to complete the said transaction by executing the deed of indemnity and the necessary conveyance. According to him, under Sections 12 (b) and (c) of the Specific Relief Act, 1877, specific performance can only be granted if there exists no standard for ascertaining the actual damage caused by non-performance of the act agreed to be done or when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief. According to him, there are sufficient materials for the Court to refuse specific performance inasmuch as pecuniary compensation would afford adequate relief in the instant case. He has first drawn my attention to cl. (3) of the agreement where it is stated that in default of making out a marketable title the vendors would return to the purchasers the earnest money and pay costs of investigation of title etc. settled at Rs. 150 only, besides actual out-of-pocket costs incurred therein. Similarly, in cl. He has first drawn my attention to cl. (3) of the agreement where it is stated that in default of making out a marketable title the vendors would return to the purchasers the earnest money and pay costs of investigation of title etc. settled at Rs. 150 only, besides actual out-of-pocket costs incurred therein. Similarly, in cl. (6) of the agreement it is made clear that if the purchasers rescind the contract the vendors will refund to the purchasers the said earnest money and shall also pay the costs of and incidental to the investigation of title and of this agreement settled at Rs. 150 and actual out-of-pocket costs. He has next referred me to the letter dated November 28, 1960, (Ex. F) written by Mr. N. N. Bhattacharjee, Solicitor for the plaintiffs, to Mr. Panchu Gopal Ganguly, lawyer for the defendants, and relied upon the following statement in the said letter: My clients have suffered and are still suffering heavy loss in the shape of loss of interest on the purchase money which they kept ready at home for nearly six months, agreed costs of Solicitor and costs of investigation and searches. He has further argued that in view of the fact that this letter being an admitted document and the entire letter having been tendered without any objection, the expression 'without prejudice', used in the second paragraph of the said letter where the plaintiffs agreed to accept a sum of Rs. 5,400 in full settlement of their claim in respect of the said transaction, cannot preclude the Court from giving weight to the quantum of damages agreed to be accepted by the plaintiffs. Lastly, Mr. Panja has stated that the grant of specific performance being a discretionary relief the Court should not decide in favour of the plaintiffs for the following reasons: (a) The plaintiffs were not ready and willing to perform their part of the contract because they approved the title of the said premises subject to two conditions - advertisement being published in newspapers and, a deed of indemnity being executed by the defendants. The conditions imposed by them were not contemplated in the agreement itself and, as such, the plaintiffs were responsible for not acting according to the terms of the agreement. The conditions imposed by them were not contemplated in the agreement itself and, as such, the plaintiffs were responsible for not acting according to the terms of the agreement. (b) The plaintiffs did not take any steps in performing their part of the contract since November 28, 1960, before instituting this suit on October 5, 1961. The letters dated April 12, 1961, and the notice of demand dated August 3, 1961, were not tendered or proved by the plaintiffs. This inaction and delay on the part of the plaintiffs should disentitle them to claim specific performance. (c) The readiness and willingness on the part of the plaintiffs was also not proved because the plaintiffs' ability to pay the sale price was not proved. (d) The readiness and willingness on the part of plaintiff No. 2 to complete the contract has not been proved. (e) The plaintiffs have in their correspondences and in the plaint insisted that the title can only be approved if and advertisements are published in newspapers and deed of indemnity is executed by the defendants. But, for the first time in 1967, when the case is being heard, the plaintiffs made out a case that they were prepared to complete the transaction without insisting on the compliance with those conditions. ( 13 ) IN my view it is not correct to say that the plaintiffs were not ready and willing to perform their part of the contract. The agreement was executed on June 20, 1960. On June 21, 1960, the plaintiffs' Solicitor wrote to the Chief Valuer, Calcutta Improvement Trust, asking whether the land was affected by any scheme or projected for widening the road (Ex. B. ). Similar letter was written same day to the Calcutta Corporation (Ex. C ). On June 21, 1960, the plaintiffs' Solicitor wrote to the Collector of Calcutta Corporation enquiring about the rates and taxes, etc. (Ex. D ). On August 25, 1960, the plaintiffs' Solicitor wrote to the defendants' Advocate enclosing original requisitions-of-title, although the draft requisitions-of-title had not been tendered inadvertently, the letter from that requisitions-of-title were in the fact sent. On November 28, 1960, the plaintiffs' Solicitor wrote to the defendants' Advocate (Ex. F) that they were surprised to get back the requisitions-of-title unanswered and intimated that they were suffering loss. On November 28, 1960, the plaintiffs' Solicitor wrote to the defendants' Advocate (Ex. F) that they were surprised to get back the requisitions-of-title unanswered and intimated that they were suffering loss. On April 12, 1961, the plaintiffs' Solicitor wrote to the defendants' Advocate that, as agreed upon, the draft conveyance was being sent for the defendants' approval. This letter although disclosed in the brief of correspondence has not been tendered. As discussed earlier there are sufficient materials to hold that the draft conveyance was sent. I have accepted the evidence of Mr. Ajoy Das, Solicitor, who has stated that on August 3, 1961, he wrote a letter to Snehalata Biswas, defendant No. 1, asking her to send back the draft conveyance on the failure of which a suit would be filed for specific performance. Admittedly, on November 23, 1960, the defendants' lawyer returned the requisitions-of-title unanswered. In that letter the defendants stated that they would not proceed with the transaction on account of some family disputes. There is evidence to show that a talk of settlement was going on, but no settlement in fact was reached. Assuming that the letter dated April 12, 1960, and notice of demand dated August 3, 1961, were not received or cannot be considered to be reliable evidence as urged by Mr. Panja, it cannot be said that there is inaction or delay on the part of the plaintiffs. The breach if at all on the part of the defendants took place on November 23, 1960. A delay for 11 months when the period of limitation is three years cannot be a bar to the plaintiffs' claim in a suit for specific performance. Delay does defeat the equity, but equity cannot be allowed in India to defeat the statutes. There is no doubt that the grant of specific performance is discretionary as stated in the statute itself, but that discretion should not be exercised simply because a person has not taken any interest in the matter for a period of 11 months, unless there are other circumstances which make it inequitable for the Court to grant him such relief. There is no doubt that the grant of specific performance is discretionary as stated in the statute itself, but that discretion should not be exercised simply because a person has not taken any interest in the matter for a period of 11 months, unless there are other circumstances which make it inequitable for the Court to grant him such relief. In this connection reliance may be placed on the following observations of the Supreme Court in (6) Satyanarayana v. Yellowji Rao, AIR 1965 SC 1405 (1408):- Under Section 22 of the Specific Relief Act relief of specific performance is discretionary but not arbitrary; discretion must be exercised in accordance with the sound and reasonable judicial principles. The cases providing for a guide to Courts to exercise discretion one way or other are only illustrative; they are not intended to be exhaustive. As Article 113 of the Limitation Act prescribes a period of three years from the dates fixed thereunder for specific performance of a contract, it follows that mere delay without more extending up to the said period cannot possibly be a reason for a Court to exercise its discretion against giving a relief of specific performance. In this connection reference may be made to (7) S. K. Buty v. Shriram Hari Tambe, AIR 1954 Nag 65 where a delay for 15 months on the part of the plaintiff was not considered as a bar to grant of specific relief. A decision to the similar effect also has been made in (8) Tharakam Veettil Muhammed v. Abdarahiman Kutty, AIR 1953 Trav 429. It may be added here that Section 22 of the Specific Relief Act does not mention delay as one of the ground on the basis of which specific performance should be refused. Mr. N. N. Bhattacharjee, the Solicitor for both the plaintiffs, has stated that his clients were ready and willing to perform their part of the contract (Qq. 68 and 69 ). Similarly, the plaintiff No. 1 Ajit Kumar Bose has stated in answer to Qq. 27, 146 and 162 that he and the plaintiff No. 2 were ready and willing. Sri Ganguly, in answer to Qq. 92 and 95. 97, did not give any indication that the plaintiff No. 2 was not ready and willing. 68 and 69 ). Similarly, the plaintiff No. 1 Ajit Kumar Bose has stated in answer to Qq. 27, 146 and 162 that he and the plaintiff No. 2 were ready and willing. Sri Ganguly, in answer to Qq. 92 and 95. 97, did not give any indication that the plaintiff No. 2 was not ready and willing. A suggestion was made to Ajit Kumar Bose (Q. 146) in the cross-examination that plaintiff No. 2 was not ready and willing. Mere suggestion in cross-examination without more cannot support Mr. Panja's contention that plaintiff No. 2 is not ready and willing. Mr. Biswas in answer to Q. 35 has stated that in spite of the loss of original title deeds the plaintiffs wanted to purchase the said premises. In my opinion, if there are several plaintiffs in a suit for specific performance, it is not necessary that all the plaintiffs must come and give evidence stating their readiness and willingness to perform their part of the contract unless there is reliable evidence to show that one or more plaintiffs expressly or by conduct have resiled from the original position or support the defendant's case. Similarly, there is no presumption against the solvency of a purchaser. The plaintiffs should have proved their ability to pay the purchase money by tendering their bank pass books, but absence of such document does not necessarily lead to a conclusion that they have no money to buy the land. Admittedly they paid the earnest money. They had been writing since November, 1960, that they were losing interests on the purchase money for the defendants' delay in completing the sale, but no protest was made orally or in writing that the story of such loss was a myth. Ajit Kumar Bose has been asked on this point, and his emphatic answer to Qq. 24 and 162 is that he has the necessary fund. Nor the witnesses on behalf of the defendant have stated that the plaintiffs have no means to pay the balance purchase money. ( 14 ) MR. Panja has also submitted that although time is not of the essence of contract in an agreement for sale of immovable property, in the instant case, the plaintiffs have treated the contract to be one in which time is of the essence of contract. ( 14 ) MR. Panja has also submitted that although time is not of the essence of contract in an agreement for sale of immovable property, in the instant case, the plaintiffs have treated the contract to be one in which time is of the essence of contract. His contention is that the plaintiffs themselves committed breach of contract inasmuch as they did not take necessary steps within the scheduled time as mentioned in the agreement itself. Accordingly, the plaintiffs themselves having committed breach of contract, they should not be granted specific performance. As already discussed in agreements for sale of immovable property time cannot be considered as of the essence of contract unless it is clearly proved that the parties have definitely intended to complete the conveyance within a fixed period. In my opinion, there is no substance in Mr. Panja's contention. In the instant case, in cl. (4) of the agreement, it is provided that the vendors shall answer within 7 days from the dispatch of requisitions-of-title relating to the said premises. In cl. (5) the agreement provides that the purchase shall be completed within three months from the date of delivery of title deeds to the purchaser's Solicitor. The agreement does not provide that the purchase will have to be completed within a particular period from the date of agreement nor the agreement has been mentioned that time was of the essence of contract. There is no doubt that there may be cases where time could be held to be of the essence of contract although it has not been specifically mentioned in the agreement itself. But, in such a case, must be clear and positive evidence that the parties intended that the transaction has to be completed within a fixed period from the date of the agreement. Ordinarily, in case of specific performance of a land or immovable property, the inspection of title deeds, search of records at the registration office and formal approval of title are taken recourse to, it is difficult to fix a definite period or date; that seems to be one of the reasons why ordinarily time is considered as of the essence of contract in an agreement for sale of immovable property. In the present case, it is specifically mentioned that the purchase has to be completed within three months but subject to the vendors making good and marketable title and delivering peaceful vacant possession of the premises. No fixed date has been mentioned that the vendors will have to make out a good and marketable title within a fixed period. Making out a good and marketable title and delivery of vacant possession might require indefinite time and only when those two formalities are complied with, steps will be taken to complete the transaction. It is true that the parties intended that purchases should e completed within three months from the delivery of the title deeds. But the agreement does not stop there; it is conditioned by two clauses and such conditions are subject to the vendors' making out good and marketable title and delivering vacant possession. Thus the period fixed is intended to be altered until good and marketable title is made out or delivery of vacant possession is given. Further, it is not the defendants' case that the transaction should have been completed by the plaintiffs within a fixed period. The oral and documentary evidence do not substantiate such cases. It appears to me that the plaintiffs were taking reasonable steps in completing the transaction. The delay, if any, is not unreasonable because, according to the defendants' own case, the original of the title deeds was destroyed by fire and naturally the plaintiffs insisted on advertisement to be published in newspapers regarding such loss and execution of a deed of indemnity. Further, admittedly there was a talk of settlement between the parties, but it fell through because of their disagreement on the quantum of compensation payable by the defendants to the plaintiffs. Considering the fact that the agreement was executed in June, 1960, the last step was taken by the plaintiffs on November 28, 1960, and the suit was filed in October, 1961, I hold that the plaintiffs are not guilty of any laches on their part in the facts and circumstances of the case. ( 15 ) THE next point I shall have to decide is whether in my discretion I should grant specific performance of the agreement by asking the defendants to execute the deed of conveyance or to allow pecuniary compensation as adequate relief in lieu of such performance. ( 15 ) THE next point I shall have to decide is whether in my discretion I should grant specific performance of the agreement by asking the defendants to execute the deed of conveyance or to allow pecuniary compensation as adequate relief in lieu of such performance. The evidence shows that the agreement in the instant case has not been rescinded nor was there any settlement between the parties whereby the contract was abandoned. The contract is subsisting. There is no letter from the defendant's side which would show that the contract was abandoned or that the settlement did take place. Plaintiffs are, therefore, entitled to get relief under the agreement for sale dated June 20, 1960. The plaintiffs from the very beginning never raised the point that the title was defective. They only required that the defendants should advertise in the newspapers about the loss of the original document and they should execute a deed of indemnity. These conditions were insisted on by the plaintiff's lawyer, according to the usual practice, in the interest of his clients. But even they showed their anxiety to complete the transaction in such a way that they even agreed to forego the compliance with these two conditions in their notice of demand dated August 3, 1961. It is true that in the plaint itself they insisted on the execution of the deed of indemnity. But that does not mean they have rejected the title of the said premises on the ground that it is defective. In any event, before me, the plaintiffs have clearly stated that they are prepared to complete the transaction even without insisting on those conditions. The plaintiffs are now asking the defendants to execute the necessary conveyance. The defendants so far have not done so, nor they want to do it. Accordingly clause (10) of the agreement is operative and the purchasers are entitled at their option to sue for specific performance and/or damages. The plaintiffs have asked for both. The explanation to Section 12 of the Act makes it very clear that in the case of specific performance of an makes it very clear that in the case of specific of an immovable property compensation does not provide adequate relief unless and until the contrary is proved. The plaintiffs have asked for both. The explanation to Section 12 of the Act makes it very clear that in the case of specific performance of an makes it very clear that in the case of specific of an immovable property compensation does not provide adequate relief unless and until the contrary is proved. Section 22 provides that jurisdiction to decree specific performance is discretionary as the Court is not bound to grant such relief merely because it is lawful to do so. The Section, however, adds that the discretion of the Court is to be exercised judicially and not arbitrarily. Reading Section 22 together with the explanation to Section 12, I am of opinion, the evidence in this case is not sufficient for me to hold that pecuniary compensation should be the adequate relief. The reasons why I say so may be stated as follows: (a) Clause (3) of the agreement provides that in default of the defendant's making out a good and marketable title, the vendors will return the earnest money and pay the costs of the purchasers settled at Rs. 150 only besides the actual out-of-pocket costs. This clause contemplates a breach of contract on the part of the defendants if they fail to make out a good and marketable title. It is not the defendant's case that they failed to make out a good and marketable title, or that the plaintiffs unreasonably withheld their approval to the title. Nor it is the plaintiff's case that the defendants committed breach of agreement on the ground that they failed to make out a good and marketable title. Thus the pecuniary compensation contemplated in that clause was agreed upon by the parties only when the particular contingency arises. In the instant case, the plaintiffs approved the title deed, but in order to complete the conveyance they wanted the defendants to comply with certain formalities for greater precaution. The plaintiff's lawyer have not unreasonably insisted for the advertisements and execution of the deed of indemnity because, admittedly the original documents were lost and ordinarily any lawyer would insist on the same. The notice of demand did not mention the requirement of advertisement and execution of the deed of indemnity. Ajit Kumar Bose has deposed before me that they were prepared to accept the title deed without insisting on the execution of the deed of indemnity. Mr. The notice of demand did not mention the requirement of advertisement and execution of the deed of indemnity. Ajit Kumar Bose has deposed before me that they were prepared to accept the title deed without insisting on the execution of the deed of indemnity. Mr. Panja has made a comment that this attitude on the part of the plaintiff's is contradictory and, as such, the discretion should not be exercised in their favour. As stated earlier, the plaintiff's original stand that the defendants should advertise the loss of the original documents in newspapers and also should execute a deed of indemnity was natural and is consistent with the usual practice. Further, these two conditions were not mentioned in the agreement itself and, accordingly, the defendants could have replied that they were not bound to comply with the same. On the contrary, the defendant's attitude was that they would not complete the contract in any case. The plaintiffs were compelled to institute this suit on the basis of their rights under the agreement itself and had to express their willingness to have the conveyance executed even without the deed of indemnity. This change of attitude, on the part of the plaintiffs, was occasioned by the attitude of the defendants and instead of weakening the plaintiff's case substantiates the anxiety on the part of the plaintiffs to complete the transaction. (b) Similarly clause (6) of the agreement provides that if the vendors fail to make out a good and marketable title or to deliver possession, it shall be optional to the purchasers to rescind this contract. If such contingency arises, the vendors will have to refund to the purchasers the earnest money and pay the settled costs of Rs. 150 and also actual out-of-pocket expenses. This clause provides the circumstances when the plaintiffs could exercise their option to rescind the contract. It is not the plaintiffs' case that the vendors failed to make out a good and marketable title. The delivery of possession is not being insisted upon by the plaintiffs at any stage. The plaintiffs have not exercised their option to rescind the contract. Thus the amount mentioned in this clause does not really contemplate a pecuniary compensation payable to the plaintiffs in lieu of specific performance. The delivery of possession is not being insisted upon by the plaintiffs at any stage. The plaintiffs have not exercised their option to rescind the contract. Thus the amount mentioned in this clause does not really contemplate a pecuniary compensation payable to the plaintiffs in lieu of specific performance. (c) In the letter dated November 28, 1960, the plaintiffs are asking in the first paragraph of that letter to completing the transaction as the plaintiffs were suffering heavy loss in the shape of loss of interest on the purchase money which they kept ready at home for nearly six months, agreed costs of Solicitor and costs of investigation and searches. This statement cannot be construed in the sense that the plaintiffs are asking for pecuniary compensation in lieu of specific performance of the contract. This letter is a reply to the letter dated November 23, 1960, addressed by the plaintiff's Solicitor to the defendant's lawyer. The defendants wanted the agreement to be abandoned on payment of certain costs and on refund of the earnest money. The plaintiffs in their reply dated November 28, 1960, did not agree of these terms and they were pressing the defendants of implement the agreement without delay because they were suffering heavy loss. There is nothing which prevents the plaintiffs to ask for loss in addition to their main relief, namely, specific performance. In fact, it is very often done. Clause (10) of the agreement also provides that if the defendants failed to execute the conveyance, the plaintiffs would be entitled at their option to sue for specific performance of the contract and/or for damages?. The first paragraph in the said letter dated November 28, 1960, cannot be understood as the plaintiff's intention to accept pecuniary compensation in preference to specific performance of the agreement. The defendants have offered to refund the earnest money and to pay actual costs incurred by the plaintiffs in consideration of abandonment of the contract. The plaintiffs in para 2 of their reply dated November 28, 1960, agreed to accept the sum of Rs. 5,400 in full settlement of the mater. Mr. Panja has, therefore, argued that this sum of Rs. 5,400/- was the sum agreed upon by the plaintiffs as the pecuniary compensation acceptable to them in consideration of not claiming anything more under the said agreement. But there are two difficulties in the way of Mr. Panja. 5,400 in full settlement of the mater. Mr. Panja has, therefore, argued that this sum of Rs. 5,400/- was the sum agreed upon by the plaintiffs as the pecuniary compensation acceptable to them in consideration of not claiming anything more under the said agreement. But there are two difficulties in the way of Mr. Panja. Firstly, that the said and counter-offer was made in writing 'without prejudice, to their usual right. Secondly, the payment was to be made in course of one week. There is not evidence that the counter-offer was accepted or that the payment was made within a week. Thus, the talk of settlement as suggested fell through and, accordingly, the said sum of Rs. 5,400 cannot be considered to be the adequate pecuniary compensation in lieu of specific performance. Further, in the second paragraph of the letter the words 'without prejudice' were written. This expression has got a juridicial meaning. The disputants to claim often negotiate for setting their disputes. This disputants to a claim often negotiate for setting their disputes. This is certainly a fair way of setting the differences. During the stage of negotiation very often the lawyers incorporate their suggestions in writing, but as the proposed terms of settlement might affect the legal rights of the parties, the words 'without prejudice' are written by of precaution. The whole idea is that if the terms are accepted then the dispute is settled. If the parties do not agree to the terms of settlement, their original right does not vanish. By adding this words 'without prejudice' they only safeguard their position that if the negotiation fails through, the proposed terms would be not affect their originalnrt. Accordingly, it is legitimate for every Court not to consider those proposed terms during the stage of negotiation if the words 'without prejudice' are written and if the proposed terms are not accepted by the other party. Mr. Panja's argument is that this letter has been tendered without any objection. In fact, it is a common document. According to him, I have got power not only to examine this letter but also to appraise the value of its contents. Mr. Panja has asked me to hold that, according to the plaintiffs, the sum of Rs. 5,400 should be considered as full compensation acceptable to them if the agreement for sale is not implemented. I agree with Mr. According to him, I have got power not only to examine this letter but also to appraise the value of its contents. Mr. Panja has asked me to hold that, according to the plaintiffs, the sum of Rs. 5,400 should be considered as full compensation acceptable to them if the agreement for sale is not implemented. I agree with Mr. Panja to this extent that I can certainly examine the contents of this letter because it is an admitted document. But that does not mean that I should overlook the circumstances under which the letter was written. In my view, the plaintiffs merely suggested settlement of the whole dispute in a particular manner which the defendants did not accept. Accordingly, I hold this sum of Rs. 5,400 cannot be considered as the plaintiff's intention to settle their claim unconditionally. (d) The legal effect of the words 'without prejudice' may now be discussed. Section 23 of the Indian Evidence Act reads as follows: In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under the circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given. . . . The words 'without prejudice' are often written by one party to the other on the assurance that the proposed terms were not to be used against the writer if there is no settlement. The entire object of the writer is that the writer expresses in writing that the suit may be settled on the proposed terms. If they are acceptable, the parties will be bound by these terms and the dispute comes to an end. If the proposed terms become infructuous, they cannot be used in future against the writer in deciding the issues between the parties. Section 23 indicates that the Court should not allow itself to be prejudiced by such proposed terms. But it is not correct to say that the document is inadmissible because the word 'without prejudice' are mentioned at the top of the letter. If the document is formally proved otherwise, the Court can certainly examine such letter. But if the entire letter is written 'without prejudice', the value of such evidence in determining the disputes between the parties is very little. If the document is formally proved otherwise, the Court can certainly examine such letter. But if the entire letter is written 'without prejudice', the value of such evidence in determining the disputes between the parties is very little. If, however, a portion of the letter is written 'without prejudice', that portion should not also be given consideration in deciding the case against one party or the other. In this connection Mr. Datta has referred me to (9) Walker v. Willsher, (1889) 23 QBD 335 where it is held that letters of conversation written on declared to be 'without prejudice' cannot be taken into consideration in determining whether there is good cause for depriving a successful litigant of costs. The said decision makes it clear that the words qualified by expression 'without prejudice' should not be considered in determining the disputes between the parties, but their admissibility cannot be questioned. In fact, the writer himself can use such document in certain circumstances. It is, therefore, not correct to say that because both the parties by consent tendered the document, the Court is bound to accept the contents. The fact that both the parties tried to settle the matter cannot be ignored. The contents of such letters may not be always relevant, but the fact that such letter was, in fact, written might be relevant for other collateral purposes where, for instance, the questions of delay, latches, fraud are involved. Reference may be made to the following observations of Lindley, L. J. in the said decision at page 338 : That case is the only authority that I know of for the course taken by the learned Judge, and, when we come to consider the principle on which it was decided, it does not convince me that a Judge is entitled to look at letters written without prejudice unless he has the consent of both the parties who is so doing. No doubt there are cases where letters written without prejudice may be taken into consideration, as was done the other day in a case in which a question of laches was raised. Similarly, Bowen, L. J. in a separate judgment has stated at page 338: Negotiations which have taken place without prejudice may be material under circumstances which not present here. . . . Similarly, Bowen, L. J. in a separate judgment has stated at page 338: Negotiations which have taken place without prejudice may be material under circumstances which not present here. . . . It is most important that the door should not be shut against compromise, as would certainly be the case if letters written without prejudice and suggesting methods of compromise liable to be read when a question of costs arose. Mr. Datta has cited the following cases in support of the same principles, but it is not necessary for me to discuss them: (10) Ranzor Singh v. Secretary of State, AIR 1926 Lahore 509, (11) Kuar Nageshar Sahai v. Shiam Bahadur, AIR 1922 Oudh 231, (12) Madhavrav Ganesh Pani Oze v. Gulabbhai Lallu Bhai, (1898) 23 Bom 177, (13) Hari Krishna v. K. C. Gupta, AIR 1949 All 440. Applying the said principles, I am of opinion, that the second paragraph of this letter cannot be used against the plaintiffs in support of the proposition that the plaintiffs agreed to accept pecuniary compensation in substitution of the specific performance of the agreement. (e) The explanation to Section 12 of the Specific Relief Act, reads as follows: Explanation - Unless and until the contrary is proved the Court shall presume that the breach of contract to transfer immoveable property cannot be adequately relied by compensation in money and that the breach of a contract to transfer moveable property can thus relieved. Mr. Panja's contention is that in the instant case the contrary has been proved and therefore I should hold that the breach of the agreement for sale can be adequately relieved by compensation in money. For the reasons stated in (a), (b), (c) and (d ). I am of opinion that it is not proved that the plaintiffs would be adequately compensated by pecuniary compensation. This presumption in the said explanation to clause 12 is not irrebutable presumption. There may be cases where the purchaser of a land may be a person who deals in purchasing and reselling lands and houses at a profit. But ordinarily a person when buys land the profit motive is not the material consideration. This presumption in the said explanation to clause 12 is not irrebutable presumption. There may be cases where the purchaser of a land may be a person who deals in purchasing and reselling lands and houses at a profit. But ordinarily a person when buys land the profit motive is not the material consideration. No cross-examination has been made on that line, nor is there any indication in the cross-examination that the price of the land has increased, and therefore, the plaintiffs should at best get the difference between the contract price and the market price. In this connection, reference may be made to Section 21, clause (a) which reads as follows: 21. Following contracts cannot be specifically enforced:- (a) A contract for the non-performance of which compensation in money is an adequate relief. . . . The illustration mentioned in the said section indicates that cl. 21 (a) does not ordinarily contemplate cases relating to agreement for sale of immovable property. In its applicability to agreement for sale of lands or houses, the onus is heavy on the party who relies on such Section. In my opinion, the defendant has not been able to discharge such onus. (f) The agreement took place on June 20, 1960. The defendants committed breach of the agreement by refusing to proceed with the transaction on November 23, 1960. The suit was instituted on October 5, 1961. No letter was written between November 23, 1960 and October 5, 1961, offering compensation to the plaintiffs in consideration of the agreement specially in view of the fact that the plaintiffs on November 28, 1960, agreed to settle the difference between the parties on the basis of a pecuniary compensation. The suit is being heard before me after about six years. There is no evidence on either side in examination-in-chief or in cross-examination whereby the Court would come to the conclusion that the price of the land has gone up or that the plaintiffs have suffered pecuniary loss on account of the defendant's failure to perform the contract. Under these circumstances, I hold that Section 12 (b) and (c) of the Specific Relief Act are applicable to this case. ( 16 ) IN para 14 of the plaint the plaintiffs have claimed a sum of Rs. 3,380 as damages in additional to specific performance. The defendants in their written statement have denied such claim. Under these circumstances, I hold that Section 12 (b) and (c) of the Specific Relief Act are applicable to this case. ( 16 ) IN para 14 of the plaint the plaintiffs have claimed a sum of Rs. 3,380 as damages in additional to specific performance. The defendants in their written statement have denied such claim. The plaintiffs have not seriously claimed this amount. In fact, no issue was raised on para 14 of the plaint or para 15 of the written statement. There is no evidence adduced by the plaintiffs in support of their claim in para 14 (a) or (b) of the plaint. There is nothing to show the reasonable letting value of the said premises as alleged, nor I have been told how and under what circumstances the purchase money was kept idle from June 20, 1960. It is extra-ordinary that the purchase money amounting to a sum of Rs. 60,000 was set apart by the plaintiffs all these years in their respective houses although they were not prevented from investing the said money in a profitable way under the agreement. I, therefore, answer issue No. 6 in the affirmative and both the parts of issue No. 8 in the negative. Issue No. 6 ( 17 ) THE answer to this issue is consequently. Mr. Datta submits that his clients are entitled to specific performance of the agreement and also to compensation for breach of contract as alleged in para 14 of the plaint. I have already stated that the plaintiffs have not been able to prove any damage and, as such, their claim to damages must be rejected. Mr. Panja has contended that prior delivery of possession is an important part of the agreement and grant of relief in the shape of specific performance of the agreement would involve delivery of possession under the terms of the agreement. The property is situated outside the jurisdiction of this Court and a decree for specific performance involves immediate delivery of possession of the premises in suit by the defendants to the plaintiffs. This aspect of the case has already been discussed by me when I discussed the issue No. 7. No doubt, clauses (3), (4) and (5) of the agreement do indicate that the prior delivery of possession is important part of the agreement. This aspect of the case has already been discussed by me when I discussed the issue No. 7. No doubt, clauses (3), (4) and (5) of the agreement do indicate that the prior delivery of possession is important part of the agreement. But clause (10) of the agreement read with clause (6) makes it clear that even if the delivery of possession is not given, the plaintiffs would be at liberty to enforce the contract. Thus the delivery of possession ceases to be a condition of the agreement. In any event, the plaintiffs have not made out a case that the defendants have committed a breach of contract for not giving delivery of possession. The plaintiffs, in fact, in the notice of demand dated August 3, 1961, gave up their claim for prior delivery of possession. Even before me, at the hearing of the suit, the learned Counsel for the plaintiffs has expressed his clients' willingness to get the transaction completed without delivery of possession. There is nothing which debars the plaintiffs to relinquish their claim to delivery of possession. Such relinquishment is legitimate and cannot be overlooked. In my view, relinquishment of a right by a party can always be made at any stage of the suit provided, of course, such relinquishment does not seriously prejudice the other party's right in the agreement. Relinquishment of a right may be relevant in evaluating the evidence on the conduct of the parties which is an important factor in equity jurisdiction, but such relinquishment by itself cannot defeat the rights of the party who relinquishes part of such right. In this connection reliance may be made to (14) Arun Prokash Boral v. Tulsi Choran Rose, AIR 1949 Cal 510, (15) Kalyanpur Lime Works Ltd. v. State of Bihar, AIR 1954 SC 165 (170) and Labanya Ray v. Rai Saheb Phanindra Mohan Mukherjee (Supra ). ( 18 ) IN my view, in an agreement for sale of immovable property, delivery of vacant possession is an important element in determining the valuation of such property. The plaintiffs agreed to purchase the land at the rate of Rs. 11,000 per cottah with the hope that they would get prior vacant possession. The plaintiffs far from getting delivery of possession were told by the defendants that they would not proceed with the transaction at all. The plaintiffs agreed to purchase the land at the rate of Rs. 11,000 per cottah with the hope that they would get prior vacant possession. The plaintiffs far from getting delivery of possession were told by the defendants that they would not proceed with the transaction at all. The plaintiffs are now prepared to complete the transaction without getting the delivery of possession. It seems to me that where delivery of vacant possession of an immovable property in a transaction for sale is a term of the contract, but not insisted on by the purchaser or where such delivery is only a warranty, relief should be granted under Section 15 of the Specific Relief Act. I, accordingly, answer the issue in the following way. ( 19 ) THERE will be a decree for specific performance of the agreement for sale of premises No. 37/1, Hindusthan Road, Calcutta. But, so far as this suit is concerned, the plaintiffs will have no claim to vacant possession of the premises. I direct that the plaintiffs should bring in the sum of Rs. 60,186. 50 P. and should pay the same into the Court to the credit of this suit within a month from the date on which this decree is completed and filed. Within a month of the date of deposit of the money, as herein provided, I order the defendants to execute a conveyance for the aforesaid terms in favour of the plaintiffs. In default of the defendants' execution of the conveyance the Registrar, Original Side of this Court, will execute such conveyance on behalf of the defendants in favour of the plaintiffs. Upon execution of the conveyance the defendants will be entitled to withdraw the said sum of Rs. 60,186. 50 P. deposited by the plaintiffs to the credit of this suit after payment of commission charges and other incidental costs, etc. The issues are, therefore, answered in the following way: Issue No. 1 No. Issue No. 2 (a) Yes. (b) The defendants are bound to do their parts in the contract. Issue No. 3 No. Issue No. 4 (a)No, but there was implied extension of time upto November 23, 1960. Issue No. 5 (a) Yes. (b) Yes. (b) November 23, 1960, is reasonable time. (a) Yes. (b)Yes. Issue No. 7 Yes. Issue No. 8 8 (a) No. (b)No. The defendants will pay to the plaintiffs costs of this suits. Issue No. 3 No. Issue No. 4 (a)No, but there was implied extension of time upto November 23, 1960. Issue No. 5 (a) Yes. (b) Yes. (b) November 23, 1960, is reasonable time. (a) Yes. (b)Yes. Issue No. 7 Yes. Issue No. 8 8 (a) No. (b)No. The defendants will pay to the plaintiffs costs of this suits. Suit succeeds.