Nazibar Rahman Molla v. Dilip Kumar Roy — 1976 DIGILAW 224 (CAL)

Judgment 1. THIS is an appeal against the decree passed in a suit for specific performance of contract for sale of some immovable property. The suit was decreed by the trial court and the defendants have preferred the present appeal. 2. THE plaintiffs' case, in short, is that on May 23, 1958, the defendants entered into an agreement in writing with the plaintiffs for sale of the said property measuring 49 decimals of land at the rate of Rs. 631/- per cottah. On the date the agreement was executed the defendants received Rs. 2001/- as earnest money. The defendants were to make out a good and marketable title and obtain necessary Income -tax clearance Certificate and execute the deed of Conveyance. It was alleged in the plaint that as the names of some other persons were found in the record of rights along with the defendants the plaintiffs' Attorney asked the defendants to get the names of those persons expunged from the record of rights. It was alleged that the defendants informed the plaintiffs Attorney on 25th January, 1961, that a suit had been filed for the said purpose and the suit was pending. The plaintiffs further alleged that in spite of several reminders the defendants failed or neglected to produce the necessary documents for satisfying the plaintiffs' solicitor about a good and marketable title of the defendants in respect of the said land and that the defendants failed to take any steps in that behalf and failed to execute the conveyance. On these allegations the plaintiffs claimed a decree for specific performance of contract for sale of the land in suit, alternatively, for a decree for refund of rs. 2,001/- with interest, and also far certain other relief. The suit was contested by both the defendants who filed a joint written statement contending, inter alia that in spite of clear title of the defendants the plaintiffs failed and neglected to complete the transaction. The defendants denied that the plaintiffs were ready and willing to perform their part of the contract, and as such the defendants claimed that no decree for specific performance should be granted in favour of the plaintiff. It was alleged that the suit was barred by limitation and also by the principles of waiver, estoppels and acquiescence. The defendants denied that the plaintiffs were ready and willing to perform their part of the contract, and as such the defendants claimed that no decree for specific performance should be granted in favour of the plaintiff. It was alleged that the suit was barred by limitation and also by the principles of waiver, estoppels and acquiescence. The defendants further alleged that they were anxious to sell the said land after payment of arrears of Income tax and Estate Duty but the plaintiffs sat over the matter for more than 5 years before they instituted the present suit, and the defendants have been seriously prejudiced thereby as they had to pay a large number of interest on the Income-tax and Estate Duty dues. 3. DURING the trial a large number of documents spreading over a period from May, 1958 to October, 1963 were produced by the parties. Most of these documents are correspondence between the parties relating to the sale of the disputed property. Some oral evidence was also adduced on behalf of the plaintiffs as well as the defendants. The learned Judge in the trial court took the view that the document was not executed on account of laches on the part of the defendants. He also found that time was not of the essence of the contract and accordingly he decreed the suit in favour of the plaintiffs. The correctness of this decision has been challenged by the defendants in this appeal. 4. EXHIBIT 4 is the agreement between the plaintiffs and the defendants dated 23rd May, 1958. After reciting that the defendants have agreed to sell and the plaintiffs have agreed to purchase the land described in the schedule to that document at the price of Rs.631/- per cottah and after the usual recital as to making over the documents of title by them within a certain period the document provides as follows:- "4. Upon the vendor's making out a good and marketable title to the said piece of land, the purchase shall be completed within 3 months from the date hereof on production of Income-Tax Clearance Certificate for sale of the said piece or parcel of land by the vendor. 5. Upon the vendor's making out a good and marketable title to the said piece of land, the purchase shall be completed within 3 months from the date hereof on production of Income-Tax Clearance Certificate for sale of the said piece or parcel of land by the vendor. 5. The purchasers have, this day, paid to the vendors the sum of Rs.2001/- (Rupees two thousand and one only) as and by way of earnest money and in part payment of purchase money and the vendors do admit and acknowledge receipt of the same. The purchasers shall also pay Rs. 8000/- in part payment of the purchase money to the Income-tax authority for and on behalf of vendors for obtaining by the vendors the necessary Income-tax Clearance Certificate after the vendors making out a good and marketable title to the said piece or parcel of land and the conveyance in respect thereof is otherwise ready for execution and registration. 6. Upon payment of balance of purchase money by the purchaser and upon Income Tax Clearance certificate being produced by the vendors then the vendors shall execute and register a conveyance of the said piece or parcel of land in favour of the purchasers or their nominee or nominees or assignee or assignees as the case may be. . . . . . " The document further provides that if the vendor fail to make out a good and marketable title or to produce Income Tax Clearance Certificate then the vendors shall refund or repay on demand the sum of Rs. 2001/- paid by the plaintiffs by way of earnest money. It also provides that if after the vendors make out a good and marketable title and produce the Income Tax clearance Certificate the purchasers fail of neglect to complete the purchase the vendors will be entitled to forfeit the earnest money and that if after making out a good and marketable title the vendors fail or neglect to sell the disputed property then the purchasers will be entitled to have specific performance of that agreement enforced through court. The question which requires consideration, therefore, is whether on the evidence adduced in the case it can be said that the defendants had been able to make out a good and marketable title to the disputed property and whether the plaintiffs were ready and willing to complete the purchase as stipulated in the agreement. The question which requires consideration, therefore, is whether on the evidence adduced in the case it can be said that the defendants had been able to make out a good and marketable title to the disputed property and whether the plaintiffs were ready and willing to complete the purchase as stipulated in the agreement. It is also to be considered whether the plaintiffs were ready and willing to perform their part of the contract and whether there is any laches on the part of the plaintiffs. Mr. Banerjee appearing in support of the appeal has contended that the plaintiffs' case in the plaint is that they were always ready and willing to purchase the property but at the same time they say the defendants' title was not approved by their solicitor. According to Mr. Banerjee this is a self contradictory case which the plaintiffs have made. P. W. 1 the father of the first plaintiff and the uncle of the second plaintiff has stated in his evidence that the plaintiffs were willing to pay the sum of Rs. 8000/- to clear the certificate-debt of the defendants but the defendants did not demand this amount. This statement is not borne out by the documentary evidence on record as would appear from Ext. 1 (r) a letter dated 17th April, 1961, addressed by the defendants to the plaintiffs solicitor which contains a reference of the letter written by the Income-tax Officer to the plaintiffs intimating the plaintiffs in July 1958 that the necessary certificate would be granted to the defendants if the plaintiffs paid Rs. 5000/- each to the certificate officer on behalf of the defendants. This letter shows that shortly after the execution of the agreement for sale the defendants took necessary steps before the Income tax Officer for making arrangement for the Income Tax Clearance Certificate which the defendants were required to obtain. P. W. 1 in his evidence admitted that the Income-tax Officer wrote a letter to the Attorney for depositing money. P. W. 1 has further stated in his evidence that the plaintiffs were willing to purchase in terms of bainapatra but the Attorney advised to purchase after title is made clear. At the same time he says that the plaintiffs informed the defendants that they were willing to purchase in spite of pending of litigation and liability of the certificate. P. W. 1 has further stated in his evidence that the plaintiffs were willing to purchase in terms of bainapatra but the Attorney advised to purchase after title is made clear. At the same time he says that the plaintiffs informed the defendants that they were willing to purchase in spite of pending of litigation and liability of the certificate. P. W. 2 Taraprosad Mitra, solicitor, acting on behalf of the plaintiffs states in his evidence that he advised rectification the record of rights before the plaintiffs could purchase. He also insisted upon a clearance certificate being obtained by the defendants before the purchase could be made. His evidence is that although he had not approved of the defendants' title even on the day he was deposing he had advised the plaintiffs to purchase the property subject to the certificate-debt and the pending litigation. This statement again is not borne out by the documentary evidence which the plaintiffs themselves have produced namely, the correspondence between the parties over a period of 5 years beginning from 6th June, 1958 to 4th October. 1963. The entire series of correspondence beginning with the letter dated 6th June, 1961, written by the defendants to the plaintiffs' solicitor being ext. l (v) clearly show that in spite of efforts being made by the defendants to satisfy the plaintiffs about the former title to the disputed land and to obtain the necessary clearance certificate from the Income-tax Officer in terms of the agreement the plaintiffs sat over the matter by raising frivolous plea only for the purpose of delaying the execution of the Sale-Deed. It will be found from Ext. 1 (d) letter dated 20th August, 1958, that the plaintiffs' solicitor was insisting upon the names of certain persons to be expunged from the record of rights and that the names of the defendants should be recorded as sixteen was owner in respect of the disputed land. This letter was replied to by the defendants' lawyer which is Ext. 1 (e) dated 26th August 1958 wherein the defendants' lawyer explained the legal position that the record of rights does not create title nor extinguishes the same and the entries raised a presumption of possession only. He referred to certain decisions for the information of the plaintiffs' solicitor. From Ext. 1 (e) dated 26th August 1958 wherein the defendants' lawyer explained the legal position that the record of rights does not create title nor extinguishes the same and the entries raised a presumption of possession only. He referred to certain decisions for the information of the plaintiffs' solicitor. From Ext. 1 (f) which is a letter dated 4th September, 1958 written by the defendants' lawyer to the plaintiffs' solicitor, it appears that the certified copy of the partition plan in Title Suit No. 110 of 1911 in the court of the Subordinate Judge, Ali-pore, was sent to the plaintiffs' solicitor for satisfying him about the defendants' title. The plaintiffs' solicitor still then was not satisfied about the defendants' title and he insisted that the names of certain other persons appearing in the record of rights along with the defendants with the remarks "besthith" should be expunged. By a letter dated 17th September, 1958, Ext. 1 (h), the defendants' lawyer made the position quite clear to the plaintiffs' solicitor about the legal position but even then in order to satisfy the plaintiffs' solicitor agreed that his client, namely, the defendants were prepared to file a suit for declaration that the entries in the record of rights were erroneous and the defendants were the sixteen annas owner in possession of the disputed land. Eventually a suit for such declaration was filed by the defendants and the fact was intimated to the plaintiffs' solicitor by the defendants' lawyer by a letter dated 19th November, 1958, Ext. 1 (j. On or about 18th February, 1959 the documents of title which the defendants had made over to the plaintiffs solicitor in. terms of agreement for sale in, May 1958, were taken back from the plaintiffs' solicitor for the purpose of filing in the declaratory suit which the defendants had filed as would appear from ext. 1 (k. The defendants' lawyer informed the plaintiffs' solicitor by a letter dated 26th April, 1960, Ext. 1 (m), that some of the defendants in the aforesaid declaratory suit had entered appearance and had disclaimed all title to and possession in the disputed land. The defendants' lawyer further informed the plaintiffs' solicitor that the defendants were in need of money to clear the Income-tax dues and Estate duty and the plaintiffs were requested through their said solicitor to complete the transaction within a week of the receipt of that letter. The defendants' lawyer further informed the plaintiffs' solicitor that the defendants were in need of money to clear the Income-tax dues and Estate duty and the plaintiffs were requested through their said solicitor to complete the transaction within a week of the receipt of that letter. 5. THE subsequent correspondences, exts. 1 (n) to 1 (v) goes to show that in spite of everything having been dome by the defendants to satisfy the plaintiffs about a good and marketable title and in spite of the defendants having asked the plaintiffs to pay the amount to them or deposit the same on their behalf in the certificate cases pending before the Certificate Officer, Ali-pore, in terms of agreement for sale, the plaintiffs never cared to perform their part of the contract and that they were delaying the matter on frivolous grounds. It would appear from the correspondence subsequent to the said period, namely, Ext. 1 (a) dated 9th march, 1963, that the plaintiffs tried to make out a ground that they were ready and willing to perform their part of the contract. This letter was replied to by the defendants by the letter dated 20th March, 1963. Ext. 1 (x), in which it was pointed out that the defendants were not obliged to execute the conveyance in view of the facts and circumstances mentioned in the said letter. The Advocate on behalf of the defendants, however, offered to refund the earnest money received by the defendants for the sake of purchasing peace although the defendants, it was stated, were entitled to forfeit the same. As already stated hereinbefore the plaintiffs' case in the present suit is that the plaintiffs' Attorney advised the plaintiffs to purchase the disputed land subject to litigation and subject to certificate-debt. If that is so one wonders what prevented the plaintiffs from purchasing the property when they were repeatedly requested to do so by the defendants. The evidence of the solicitor who was acting for the plaintiffs is that as one year passed he advised his clients to purchase the property subject to litigation. This witness has further said that the correspondence will show that he advised his client to purchase the property subject to certificate debt and also the pending litigation. But the correspondence show otherwise. This witness has further said that the correspondence will show that he advised his client to purchase the property subject to certificate debt and also the pending litigation. But the correspondence show otherwise. Therefore, the plea of the plaintiffs that they were ready and willing to purchase the property cannot be accepted because the documentary evidence shows that the title was not approved. Therefore, how could the plaintiffs be ready and willing to purchase? Exhibit l (q) is a letter from the plaintiffs' solicitor to the defendants in which the defendants were asked to produce the Income-tax and Estate duty clearance certificate for registration of the conveyance. The said letter is dated 5th April, 1961. The evidence of P. W. 2 to the effect that he advised his client to purchase the said property subject to certificate debt and also pending litigation cannot therefore, be accepted. If that is so then it cannot, in our view, be said that the plaintiffs were ready and willing to purchase the property, a case which they have made out in the plaint in the present suit. It is worthwhile to note in this connection the averment made by the plaintiffs in paragraph 10 of their plaint. In that paragraph the plaintiffs have stated that since the defendants could not make out a good and marketable title to the suit land and since the declaratory suit instituted by the plaintiffs was pending' at the time of institution of the present suit the plaintiffs have prayed for a decree directing the defendants to convey the said land or so much their interest therein as the defendants are capable of passing on the date of execution of sale Deed on payment of the proportionate amount of the consideration money as may be determined by the court. This is a completely new case which is not supported by any evidence produced before the court, and in my view such a case has been set up by the plaintiffs only to lend support to their averment that the plaintiffs were always ready and willing to purchase the disputed property. 6. ON behalf of the plaintiffs respondents Mr. Dasgupta has contended that under the agreement dated 23rd may, 1958, Ext. 4, the defendants were required to make out a good and marketable title before the plaintiffs were required to pay Rs. 6. ON behalf of the plaintiffs respondents Mr. Dasgupta has contended that under the agreement dated 23rd may, 1958, Ext. 4, the defendants were required to make out a good and marketable title before the plaintiffs were required to pay Rs. 8000/- for and on behalf of the defendants to the Income-tax Authorities' for the purpose of enabling the defendants to obtain the Clearance Certificate. Mr. Dasgupta has contended that as the defendants failed to make out a good and marketable title the plaintiffs were not under any obligation to pay the aforesaid amount of Rs. 8000/- to the Income-tax Authorities for and on behalf of the defendants. I am unable to uphold this contention of Mr. Dasgupta as I have already found that the defendants had, by production of the relevant documents, amply 'satisfied the plaintiffs that the defendants had a valid title to the land in dispute. Mr. Dasgupta has tried to put forward an explanation as to why the plaintiffs changed their stand taken previously, and became willing to purchase the property subject to the pending litigation and income-tax liability, by referring to ext. 1 (m) and 1 (o) which are two letters dated 26th April, 1960 and 25th January, 1961 addressed respectively by the defendants' advocate to the plaintiffs' solicitor, and by the defendant No. 1 to the plaintiffs' solicitor. By the first one of these letters the plaintiffs' solicitors was informed that some of the defendants in the declaratory suit which had been filed by the defendants of the present suit had disclaimed all title to and possession in the disputed land. Along with the second letter, ext. 1 (o) the plaintiffs' solicitor was supplied with true typed copies of the plaint and the two written statements filed in the aforesaid suit. This explanation of Mr. Dasgupta does not stand scrutiny in view of Ext. 1 (x)which is a letter dated 20th March, 1963 written by the defendants' advocate to the plaintiffs' solicitor in which a statement has been made that the plaintiffs' advocate Mr. S. N. Barman inspected the record of the suit to satisfy himself about the sixteen annas title of the defendants in the disputed property. This statement has not been controverter on behalf of the plaintiffs and it goes unchallenged. Under the circumstances the explanation offered by Mr. S. N. Barman inspected the record of the suit to satisfy himself about the sixteen annas title of the defendants in the disputed property. This statement has not been controverter on behalf of the plaintiffs and it goes unchallenged. Under the circumstances the explanation offered by Mr. Dasgupta on' behalf of his client about the reason which brought about a change in the stand taken by the plaintiffs cannot be accepted. Mr. Dasgupta has further contended that the contract subsisted throughout the entire period and the defendants have failed to show how they are entitled to avoid the agreement. It was accordingly contended by him that the plaintiffs are entitled to specific performance of the contract. It is no doubt true that ordinarily in a contract for sale of land time is not of the essence of the contract unless specifically provided for in the contract itself. In the present case there is no such specific provision in the agreement dated 23rd May, 1958 that time will be of the essence of the contract. The period of limitation for filing a suit for specific performance of contract under Article 113 of the Indian limitation Act, 1908 which corresponds to Article 54 of the Limitation Act 1963, will, therefore, be 3 years from the date when the plaintiff has notice that performance is refused. It was con tended on behalf of the plaintiffs that since the contract was repudiated in march 1963 by Ext. 1 (x) the present suit was well within time. In a suit for specific performance the court has always discretion either to grant a decree in favour of the plaintiffs or not to do so. The principle of the English law that delay or laches on the part of the plaintiff will disentitle the plaintiff from having a decree for specific performance of contract has no application in India. The English Law in this respect is based on equity whereas the Indian Law is statutory. Therefore, mere delay will not disentitle the plaintiff from having a decree for specific performance if the plaintiff's suit is within the period limitation. But this does not necessarily mean that a suit for specific performance of a contract if brought within the period of limitation will have to be decreed by the court every case. Therefore, mere delay will not disentitle the plaintiff from having a decree for specific performance if the plaintiff's suit is within the period limitation. But this does not necessarily mean that a suit for specific performance of a contract if brought within the period of limitation will have to be decreed by the court every case. Even if a suit is brought within the period of limitation the court has discretion either to grant the relief by way of specific performance or not to do so, having regard to the circumstances of the case, the conduct of the parties, and a consideration of justice arid equity between the parties. This proposition has been well settled by judicial pronouncements of different High Courts as well as the Supreme Court and the privy Council. 7. IN Madensetty Satyanarayana v. G. Yelloji Rao and others, A.I.R. 1965 S.C. 1405 their Lordships of the Supreme Court after referring to the provisions of section 22 of the Specific relief Act of 1877 and Article 113 of the Limitation Act has observed as follows: "under s. 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 Art. 113 of the Limitation Act prescribed a period of 3 years from the date fixed there under for specific performance of 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. Nor can the scope of the discretion after excluding the cases mentioned in sec. 22 of the Specific Relief Act be confined, to waiver abandonment and estoppels. If one of those three circumstances is established, no question of discretion arises, for either there will be no subsisting right or there will be a bar against its assertion. So, there must be some discretionary filed unoccupied by the three cases, otherwise the substantive sections become otiose. It is really difficult to define that field. Diverse situations may arise which may induce a court not to exercise the discretion in favour of the plaintiff. So, there must be some discretionary filed unoccupied by the three cases, otherwise the substantive sections become otiose. It is really difficult to define that field. Diverse situations may arise which may induce a court not to exercise the discretion in favour of the plaintiff. It may better be left undefined except to state what the section says, namely, discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal. " Again, in the said decision after discussing the difference in law relating to specific performance of contract in England and India, their Lordships have observed: "it is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible inducing the defendant to change his position to his prejudice or such as to bring about the situation when it is in equitable to give him such a relief. " In a recent decision of this Court reported in A. I. R. 1976 Calcutta 115, manicklal Seal and another v. K. P. Choudhury, my learned brother Bhattacharyya J. had occasion to deal with this subject and a number of authorities including the aforesaid decision of the Supreme Court were considered by his Lordship. In Jadunath Gupta v bhusan Chandra Sur, 36 C. W. N. 285, a division Bench of this Court took the view that in cases other than commercial contract the ordinary presumption is that the time is not of the essence of a contract. But that presumption is rebut table. Time may be of the essence of a contract by reason of an express condition or such condition may be inferred from the circumstance and intention of the parties. It was further held that although time is not of the essence of a contract except in mercantile and business contracts, it may be material for the purpose of considering whether in the circumstance of a particular case specific performance should be granted. Absence of proof of plaintiff's readiness and earnestness to perform his part of the contract will entitle the court to exercise its discretion and refuse relief to him. Absence of proof of plaintiff's readiness and earnestness to perform his part of the contract will entitle the court to exercise its discretion and refuse relief to him. But mere delay is not a ground for refusing relief to the plaintiff if there has been no change in the status quo since the contract. But where the conduct of the plaintiff is such that although it does not amount to abandonment but shows waiver or acquiescence, specially when in action his part induces, the defendant to change his position, the plaintiff ought not to be allowed any relief. The leading decision on this subject which has been persistently followed by all Courts is to be found in the case of Linsay Petroleum Co. v. Kurd, (1873) L. R. 5 P. C. 221, where Sir Bernes Peacock laid down the law on this subject at page 239 in the following words : "now the doctrine of laches in courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were after words to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statutes of limitation, the validity of that defense must be tried upon the principles substantially equitable. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statutes of limitation, the validity of that defense must be tried upon the principles substantially equitable. The two circumstances always important in such case, are, the length of the delay and the nature of the acts done during the interval which may affect either party to cause a balance of justice or injustice in taking one course or the other, so far as relates to the remedy." Following the above principle a division Bench of the Madras High court in Arjuna Mudaliar v. Lachmi ammal and others, A.I.R. 1949 Madras 265, held that although mere delay does not by itself preclude the plaintiff from obtaining specific performance if his suit is otherwise in time, if the delay is such that it may be properly inferred that the plaintiff has abandoned his right or on account of delay there must have been such a change of circumstances that the grant of specific performance would prejudice the defendant, then the court would be entitled to refuse to grant a decree to the plaintiff. In Tribeni Prosad Singh v. Joynarayan Singh, A.I.R. 1937 Patna 425 a Division Bench of the Patna High court had occasion to consider a case where the plaintiff in a suit for specific performance of contract was trying to put a construction upon the contract, which Was found by the learned District judge who dismissed the suit, to be untenable to the knowledge of the plaintiff. The Division Bench on a consideration of the materials on record took the view that it was clear that the plaintiffs did attempt to put a construction upon the contract which was known by them to be wrong and in doing so they acted dishonestly. Upon that finding their Lordships held that the decree of dismissal passed by the trial court was based upon the well known principle that equity will not help a dishonest litigant who demands what he is not entitled to. Upon that finding their Lordships held that the decree of dismissal passed by the trial court was based upon the well known principle that equity will not help a dishonest litigant who demands what he is not entitled to. From these decisions it follows that the discretion conferred by law upon the courts is to be exercised upon well established principles and a case in which that discretion is to be used has to be tested on the facts and surrounding circumstances, such is the relation between the parties, the nature of the subject-matter of the contract, the conduct of the parties and other material circumstances existing at the relevant time. 8. KEEPING these principles in view what we find in the present case is that the defendants had taken all steps as promptly as possible to satisfy the plaintiffs about a good and marketable title but the plaintiffs went on putting off the completion of the transaction on some plea or the other. The contract was entered into by the defendants as there was a pressing demand for payment of Income-tax dues. The plaintiffs agreed to pay a sum of Rs.8000/- for and on behalf of the defendants in the certificate cases which were pending against the defendants at the time when the contract was entered into. This money was not paid by the plaintiffs in spite of being repeatedly asked to do so by the defendants, even the Income- Tax Officer wrote to the plaintiffs for such payment. Ultimately the defendants served a notice upon the plaintiffs on 26th April 1960, Ext. 1 (a), informing them that if the sale is not completed within 7 days from the receipt of the said letter the agreement for sale would be treated as cancelled and the defendants would be free to sell the disputed property to others. Even on receipt of this letter the plaintiffs did not take any step to complete the transaction. On the other hand the plaintiffs again raised certain plea in order to put off the matter for some more time. Ultimately the plaintiffs" solicitor wrote letter dated 9th March, 1963, Ext. Even on receipt of this letter the plaintiffs did not take any step to complete the transaction. On the other hand the plaintiffs again raised certain plea in order to put off the matter for some more time. Ultimately the plaintiffs" solicitor wrote letter dated 9th March, 1963, Ext. 1 (W), to the defendants, which appears to have been written only for the purpose of showing that the plaintiffs had always been ready and willing to conclude the transaction in my view, this is nothing but an attempt on the part of the plaintiffs to create evidence for the purpose of the present suit which was ultimately filed on 15th October, 1963. It is in evidence that the plaintiffs not having paid the amount which they were required to pay to enable the defendants to obtain the Income-tax Clearance certificate the defendants had to raise money from other source with which they paid the Income-tax dues. In these circumstances I do not think that the plaintiffs are entitled to a decree for specific performance of the contract. The decree passed by the trial court in favour of the plaintiffs cannot, therefore, be sustained. This appeal is accordingly allowed. The judgment and decree of the trial court are set aside and the suit is dismissed. As the defendants themselves offered to refund the earnest money of Rs.2001/-and they did not claim that they were entitled to forfeit the same, there will be a direction upon the defendants to refund the said sum of Rs.2001/- to the plaintiffs within 3 months from this date but without any interest thereon. In the circumstances the appellants are entitled to their costs in this appeal as well as in the trial court.