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2005 DIGILAW 431 (CAL)

RABINDRA KUMAR PAUL v. SATYENDRA KUMAR MOOKHERJEE

2005-07-11

BHASKAR BHATTACHARYA

body2005
BHASKAR BHATTACHARYA, J. ( 1 ) THIS first appeal is at the instance of a plaintiff in a suit for specific performance of contract and is directed against the judgment and decree dated September 26,1997 passed by the Civil Judge, Senior Division, 3rd Court, Alipore in Title Suit No. 186 of 1988 thereby dismissing the suit. ( 2 ) THE appellant filed the aforesaid suit for specific performance of contract dated November 27,1977 in the 3rd Court of Civil Judge, Senior Division, Alipore on 8th July, 1988 and the case made out by the appellant may be summarised thus: (a) The suit property consisted of more or less eight cottahs and three chittaks situated in premises No. 12, 13 and 14, Raja Subodh Mullick road in the district of 24-Parganas (South ). The property was owned by the respondent by way of inheritance from his father. (b) On 29th November, 1977, the respondent entered into an agreement for sale of the suit property at the price of Rs. 10. 000/- per cottah and took Rs. 2,001/- as earnest money and part payment of consideration. At that point of time, there were several monthly tenants over the property and it was agreed that except one of those tenants, namely, Manick chandra Sarkar, the defendant would evict all other tenants and will also fell down the banyan tree standing thereon and will give boundary wall at the cost of the plaintiff and for the purpose of eviction of tenants the plaintiff should be ready to pay a maximum amount of Rs. 3,000/ -. (c) The plaintiff was all along ready and willing to perform his parts of the agreement and accordingly, there were several consultations with the defendant and the defendant was advised by the learned advocate for the plaintiff to institute suits for eviction against the tenants but the defendant for the reasons best known to him, did not file any suit and instead, he started killing time without taking any step for evicting the tenants. (d) The plaintiff on August 5, 1981 issued a letter to the defendant requesting him to arrange for eviction of the tenants and cutting down the trees and giving boundary wall but the said letter returned back with the postal remarks 'out of station'. (d) The plaintiff on August 5, 1981 issued a letter to the defendant requesting him to arrange for eviction of the tenants and cutting down the trees and giving boundary wall but the said letter returned back with the postal remarks 'out of station'. The plaintiff sent another letter to the defendant on September 21,1981 requesting him to abide by the terms of agreement but having no answer from the defendant, the plaintiff met him at his house on several occasions with request to take step for eviction of tenants and removing the trees etc. and he also took him to the Local "nagarik Committee" for the purpose of making negotiation for eviction of tenants. (e) The plaintiff again on April 1, 1982 issued a registered letter to the defendant requesting him to comply with the terms of the agreement. The defendant received the notice, met plaintiff and had some discussions but thereafter, remained silent for the reason best known to him. Subsequently, on 14th September, 1985 the plaintiff who to another letter with draft conveyance for getting income-tax clearance with the request to arrange for eviction of tenants. The plaintiff again on 8th November, 1985 sent another letter with a draft conveyance for getting income-tax clearance under certificate of posting with a request to take step for eviction of the tenants. The defendant though received the said letter, did nothing and finding no other alternative, the plaintiff again met the defendant in his house with request for taking step for getting income-tax clearance. The defendant agreed to take necessary step but nothing was done. (f) The plaintiff on 18th March, 1988 issued another registered letter to the defendant asking him to arrange for eviction of the tenants and removal of trees etc. as per terms of the agreement. The defendant received the notice and answered the said notice on 22nd April, 1988 by making various false allegations and returned the amount of rs. 2001/- the amount of earnest money by a cheque. (g) In reply, the plaintiff at once sent a registered letter to defendant through his advocate asking him to send the draft conveyance already remitted so that the plaintiff could complete the transaction. 2001/- the amount of earnest money by a cheque. (g) In reply, the plaintiff at once sent a registered letter to defendant through his advocate asking him to send the draft conveyance already remitted so that the plaintiff could complete the transaction. On receipt of the said letter dated 22nd April, 1988 from the defendant, the plaintiff personally went to the defendants' house and enquired of him about the step he had taken for eviction of the tenants occupying the property. The defendant, in fact, gave no satisfactory reply and was unwilling to answer the queries regarding tenants. The plaintiff along with his agents also went to the locality and made enquiry on the spot regarding the steps initiated by the defendant for evicting the tenants and was prima facie satisfied that defendant failed and neglected to take any positive steps. (h) On receipt of the cheque, plaintiff refunded the demand draft for Rs. 20017- with covering note protesting the wrongful allegations made in the letter dated 22nd April, 1988 by registered post with A/d but the said envelope came back with the postal remark 'refused'. (i) The plaintiff was, thus, all along ready and willing to perform his part of contract but the defendant refused to honour the same. The time was never the essence of contract. ( 3 ) THE suit was contested by the defendant by filing written statement thereby denying the material allegations made in the plant and the defence taken by the defendants is in substance as follows: (1) The plaintiff had no cause of action for filing the suit and the suit was barred by limitation as well as under section 56 of the Contract Act and section 16 of the Specific Relief Act. (2 ). In the agreement for sale, it was provided that the agreement should be completed within four months from the date of execution but the parties subsequently on 28th March, 1978 agreed that the time limit for completion of the agreement would be extended by further six months as plaintiff expressed his inability within the stipulated time of four months to complete the transaction by paying the balance amount of consideration money. (3) Time was the essence of the contract but the plaintiff within the stipulated time did not express his desire to comply with the terms of the agreement either in writing or paying the balance amount whereas the defendant was all along ready and willing to perform his part of the contract. (4) It was denied that there was any consultation with Sovamoy Banerjee, the learned advocate for the plaintiff as regards eviction of the tenants. According to clause 4 of the agreement, if more amount of money was required for getting the suit property free from the tenants, it was the duty of the plaintiff to pay a sum of Rs. 3000/- but the plaintiff never came forward to assist the defendant to get the suit property unencumbered from the tenants. (5) It was specifically denied that on 5th August, 1981 plaintiff issued a letter to the defendant requesting him to arrange for eviction of tenants, cutting down of trees and giving boundary wall. The defendant tried his best to get the suit property free from the tenants and the plaintiff was all along aware of such fact. Due to the resistance and refusal on the part of the tenants, it was impossible for defendant to get khas possession of the suit property and such fact was made known to the plaintiff. Despite refusal of tenants, the defendant personally approached the Local Nagarik Committee for rendering assistance to him but the said Committee ultimately expressed its inability to assist the defendant and the defendant was unable to proceed further for the above purpose and the plaintiff was asked to take back the earnest money. All these happened in the presence of plaintiff and the plaintiff was aware of impossibility of performance of the defendant's part of the contract by giving vacant possession although effective steps were taken by defendant. (6) It was denied that plaintiff on 14th September, 1988 sent another letter with draft conveyance for getting income-tax clearance with request to arrange for eviction of tenants or that on 8th November, 1985 sent another notice with a draft conveyance. (7) The agreement by its term automatically stood cancelled and the defendant returned the money by a bank draft. (6) It was denied that plaintiff on 14th September, 1988 sent another letter with draft conveyance for getting income-tax clearance with request to arrange for eviction of tenants or that on 8th November, 1985 sent another notice with a draft conveyance. (7) The agreement by its term automatically stood cancelled and the defendant returned the money by a bank draft. (8) The plaintiff after execution of the agreement neither visited the spot nor ever contacted with the defendant to lend his support to facilitate eviction of tenants and was sleeping over the matter. If the plaintiff was at all ready and willing to perform his part of contract he would not file the suit after lapse of about twelve years from the date of the agreement. ( 4 ) AT the time of hearing of the aforesaid suit, the plaintiff himself and one nirmal Chakraborty gave evidence in support of the plaint case while the defendant alone deposed controverting the allegations of the plaintiff. ( 5 ) AS indicated earlier, the learned Trial Judge by the judgment and decree impugned in this appeal has dismissed the suit not only on the ground that the suit was barred by limitation but also with specific observation that the plaintiff was not ready and willing to perform his part of contract. The learned Trial judge further found that suit was barred by section 56 of the Contract Act and section 16 of the Specific Relief Act. ( 6 ) BEING dissatisfied, the plaintiff has come up with the present appeal. ( 7 ) MR. Dasgupta, the learned senior advocate appearing on behalf of the appellant, at the very outset, contended that the learned Trial Judge committed substantial error of law by misconstruing the agreement for sale. Mr. Dasgupta contends that the learned Trial Judge totally misread various letters issued by the plaintiff and from those letters it is apparent that the plaintiff from the very beginning was all along ready and willing to perform his part of his contract but it was the defendant who did not care to comply with his part of the contract by evicting the tenants. Mr. Dasgupta points out that the defendant did not take any step whatsoever for eviction of the tenants nor did the defendant ever claim any amount from the plaintiff as per the agreement for their eviction. Mr. Mr. Dasgupta points out that the defendant did not take any step whatsoever for eviction of the tenants nor did the defendant ever claim any amount from the plaintiff as per the agreement for their eviction. Mr. Dasgupta further points out that his client sent the draft conveyance well in advance so that the plaintiff could take income-tax clearance which was essentially required under law to complete the transaction but no evidence has been adduced on behalf of the defendant to show that he had any intention to complete the transaction after taking the earnest money. ( 8 ) MR. Dasgupta further contends that the finding of the learned Trial Judge that the suit was barred by limitation is a perverse finding of fact. Mr. Dasgupta contends that in this case, the defendant returned the earnest money only a few months before the institution of the suit and according to the section 56 of the Limitation Act the period of limitation of filing the present suit started only when the defendant returned the earnest money manifesting his intention to refuse performance his part of contract. According to Mr. Dasgupta, the defendant by returning the earnest money expressed his intention of refusal only few months prior to institution of the suit and therefore, the suit cannot, at any rate, be described as one barred by limitation. ( 9 ) MR. Dasgupta further contends that in case of an agreement for sale of immovable property, time is never treated to be an essence of contract unless contrary intention of the parties is explicit. According to Mr. Dasgupta, from the evidence on record, the learned Trial Judge ought to have held that from the conduct of the parties it was apparent that the time was never the essence of the contract involved herein. ( 10 ) AS regards the finding of the learned Trial Judge that the plaintiff was not all along ready and willing to perform his part of contract, Mr. Dasgupta submits that there is no dispute that his client used to pay Rs. 1,00,000/-per annum as income-tax and as such, it is an absurd contention on the part of the defendant to suggest that the plaintiff was incapable of paying the balance amount of Rs. 88,000/- for completing the transaction. Mr. Dasgupta submits that there is no dispute that his client used to pay Rs. 1,00,000/-per annum as income-tax and as such, it is an absurd contention on the part of the defendant to suggest that the plaintiff was incapable of paying the balance amount of Rs. 88,000/- for completing the transaction. Mr. Dasgupta submits that his client had even expressed desire to purchase the property with tenants but the defendant did not show his willingness. Mr. Dasgupta, therefore, prays for sotting aside the judgment and decree passed by the learned Trial Judge and granting a decree for specific performance of the contract. ( 11 ) THE aforesaid contentions of Mr. Dasgupta are seriously disputed by mr. Banerjee, the learned senior advocate appearing on behalf of the defendant. Mr. Banerjee points out that although the agreement was entered into in the year 1977, before the year 1981, the plaintiff did not take any steps for purchase of tht property because the plaintiff knew that it was not possible for the defendant to evict tenants and that he had not the required amount of money with him. ( 12 ) MR. Banerjee contends that the plaintiff for the first time expressed his willingness to purchase the property with tenants in the plaint of the suit and prior to that, he never conveyed his desire to purchase the property with tenants. Mr. Banerjee submits that even in the letter of the year 1987, the plaintiff asked the defendant to take step for eviction of tenants. By referring to the said letter, Mr. Banerjee contends that the version of the plaintiff that he sent draft conveyance indicating that the property should be purchased with the existing tenants was on the fact of it contradictory to the contents of the letter. Mr. Banerjee submits that in the past, no draft conveyance was ever sent to the defendant and to that effect specific suggestion had already been given to the plaintiff in cross-examination. ( 13 ) MR. Banerjee submits that from the fact that initial period of performance of the contract within four months having been extended by further by six months, it is conclusively proved that time was the essence of contract and it is also established that the plaintiff was never ready and willing to perform his part of contract within the aforesaid extended period. Mr. Mr. Banerjee submits that long four years after the execution of the agreement, the plaintiff requested the defendant to take steps for eviction of tenant knowing fully well that was not possible. According to Mr. Banerjee, the date of return of the earnest money to the plaintiff cannot start running of period of limitation afresh when on that date the agreement had already become unenforceable being barred by limitation. Mr. Banerjee, thus, supports the judgment and decree passed by the learned Trial Judge. ( 14 ) THEREFORE, the first question that arises for determination in this appeal is whether the time was the essence of contract. ( 15 ) IT is now settled position of law that in an agreement for sale of immovable property, the time is generally not to be presumed as essence of contract and whether time was really the essence of contract can be ascertained from the real intention of the parties and in such a case, it is for the person who alleges that time was the essence of the contract to prove such fact. The intention can be ascertained either from the express words used in the contract or the nature of the property which forms the subject-matter of contract, the nature of the contract itself and also from surrounding circumstances. It is also settled law that even if any time is fixed in the contract, such clause by itself cannot lead to the conclusion that time was the essence of the contract. (See Govind Prasad chaturvedi vs. Hari Dutt Shastrl and Anr. , reported in AIR 1977 SC 1005 paragraph 5 ). ( 16 ) IN this case, it appears from the agreement that specific time limit was fixed, namely, four months for completion of the transaction. It further appears from the evidence on record that such time was further extended by six months with the consent of the parties. But the other clauses in the agreement cast duty upon the vendor to evict existing tenants except a specific one and also to show his clear title over the property to the purchaser. It was further stipulated in the agreement that for the purpose of evicting the existing tenants, the purchaser should be prepared to pay a maximum amount of Rs. 3,000/ -. It was further stipulated in the agreement that for the purpose of evicting the existing tenants, the purchaser should be prepared to pay a maximum amount of Rs. 3,000/ -. At the time of execution of the agreement no suit for eviction was pending and the parties intended that through negotiation the tenants would be evicted. We shall presume that the parties well knew that according to the provisions of the West Bengal Premises Tenancy Act it would not be possible to force a tenant to vacate and that it was also not possible to get possession from tenant through court within four months when law enjoins service of notice of eviction of one month and the tenant has been given right to prefer not only a regular first appeal but also a second appeal before this Court against the decree passed by the first Appellate Court. Therefore, even though a specific time was fixed in the agreement for completing the transaction, it was never the intention of the parties that the time would be the essence of the contract in the facts of the present case. ( 17 ) BUT even if time was not the essence of the contract that does not mean that the parties intended that the said agreement will be kept alive for all time to come. In such a situation, the parties are under obligation to complete the transaction within a reasonable period and if it appears to a Court that the plaintiff was not at all serious to conclude the contract within a reasonable time it will refuse to grant a decree for specific performance of contract in his favour. ( 18 ) IN this case, the plaintiff has not produced any material to show that even after the expiry of extended period, he ever demanded in writing performance of the contract within two years and ten months. The first document that has been produced by the plaintiff insisting on performance of agreement is dated August 5, 1981 although the agreement was entered into in the year 1977 and the time of execution of the document was extended on March 28, 1978 by further six months on the consent of the parties. The first document that has been produced by the plaintiff insisting on performance of agreement is dated August 5, 1981 although the agreement was entered into in the year 1977 and the time of execution of the document was extended on March 28, 1978 by further six months on the consent of the parties. By the said letter, the plaintiff merely asked the defendant to take step for eviction of tenants and removal of trees knowing fully well that in course of last four years tenants could not be evicted through negotiations. Even at that time he never expressed his desire to purchase the property with tenants nor did he intend to purchase even the portion occupied by Manik Sarkar which he agreed to purchase without evicting him as per terms of the agreement. It further appears that according to the plaintiff, he for the first time sent the draft deed of conveyance to the defendant in the year 1985 to enable the defendant to apply for income-tax clearance. Such fact however has been denied by the defendant. From the copy of the said draft alleged to have been sent by the plaintiff to the defendant, we find that the plaintiff intended to purchase with all the existing tenants. We fail to understand why in spite of sending such draft the plaintiff long thereafter on March 18,1988 (Ext-8) demanded eviction of tenants from the suit property. The aforesaid letter falsifies the statement of the plaintiff that he ever sent a draft conveyance to enable the defendant to apply for income-tax clearance. There is no evidence to show that the plaintiff ever offered the defendant to pay the agreed sum of Rs. 3,000/- for the eviction of the tenants. ( 19 ) IT is the definite defence of the defendant that as the plaintiff had no financial ability to pay the balance amount at the relevant point of time, he did not take any interest in the matter. The plaintiff in his evidence has stated that he had that ability and was paying Rupees one lakh as income-tax every year. The defendant gave specific suggestion to him in cross-examination that the aforesaid statement was not correct. The plaintiff in his evidence has stated that he had that ability and was paying Rupees one lakh as income-tax every year. The defendant gave specific suggestion to him in cross-examination that the aforesaid statement was not correct. The plaintiff replied that he had documents to prove such fact but for the reason best known to him neither the document showing payment of income-tax nor the ability to procure the balance amount with the required stamp-duty was proved. In the face of such evidence the learned trial Judge, in our opinion, rightly came to the conclusion that the plaintiff was not at all ready and willing to perform his part of the agreement at the relevant point of time for want of necessary fund. Moreover, we have already found that the plaintiff was not interested to purchase the property with tenants at the relevant point of time as will appear from the fact that even in the year 1987 he insisted on eviction of tenants. We, therefore, disbelieve his case that he ever sent any draft conveyance agreeing to purchase the property with tenants. Even if such draft was sent, the same was not a sincere offer as would appear from his subsequent conduct demanding eviction of tenants which was not possible without filing regular civil suits. It is, therefore, well-established that the plaintiff was not always ready to perform his part of the agreement and such fact is sufficient to dismiss the present suit for specific performance of contract. ( 20 ) ALTHOUGH, Mr. Dasgupta gave offer to Mr. Banerjee before this Court to purchase the property on the basis of present market price, we are of the view that once it is established from evidence that the plaintiff was not at all ready and willing to perform his part of contract, we cannot consider such proposal of appellant before the Appellate Court. ( 21 ) THE next question is whether the suit was barred by limitation. ( 22 ) ACCORDING to Article 54 of the Limitation Act, if specific date is fixed for performance of the agreement, the period of three years will run from that date and in other cases, time will start running when plaintiff comes to know that defendant refused to perform his part of contract. ( 22 ) ACCORDING to Article 54 of the Limitation Act, if specific date is fixed for performance of the agreement, the period of three years will run from that date and in other cases, time will start running when plaintiff comes to know that defendant refused to perform his part of contract. In this case, we having found that no time was fixed for performance of the contract, the time will start running when the plaintiff had the definite knowledge that the defendant had refused to act in terms of the agreement. According to plaintiff himself, he all along kept in touch with defendant and insisted on eviction of tenant but no proceedings was initiated by defendant within the extended period. In such a situation, the plaintiff had definite knowledge that the defendant refused to perform his part of the contract and there was no justification of waiting for eleven years from the date of execution of the agreement and the suit was definitely barred by limitation. We cannot lose sight of the fact that the plaintiff right from the year 1981 started writing letters by registered post and according to him he also verbally requested the defendant to file suits against the tenants but in spite of those letters and verbal request if the defendant even did not care to answer those letters the plaintiff definitely had knowledge of refusal before May, 1985. ( 23 ) WE find substance in the contention of Mr. Banerjee, the learned advocate for the respondent that simply because the defendant refunded the earnest money in the year 1988, such fact cannot lead to the inference that limitation should run from that day. Once it is established from evidence that long back even during the period of 1981 in spite of receiving repeated letters the defendant did not take any step for filing any suit for eviction of the tenants nor did he give any assurance of filing any suit, the said agreement became time barred three years thereafter and once such agreement became time barred, subsequently, if the defendant merely returned the earnest money with specific statement that he was returning the same as the agreement had long back became time barred, the period of limitation already expired cannot revive. ( 24 ) WE, thus, find that the learned Trial Judge was quite justified in holding that the suit was barred by limitation. ( 25 ) WE, therefore, find that the learned Trial Judge on consideration of the materials on record rightly dismissed the suit and we find no reason to interfere with the judgment and decree passed by the learned Trial Judge. Since the earnest money had already been returned to the defendant even before filing of the suit, no question of even passing a decree for refund of the said amount arises. ( 26 ) THE appeal is, thus, dismissed. In the facts and circumstances, there will be, however, no order as to costs. Appeal dismissed.