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PETITIONER: HUNGERFORD   INVESTMENT   TRUST   LIMITED   (IN    VOLUNTARY

       Vs.

RESPONDENT: HARIDAS MUNDHRA & OTHERS

DATE OF JUDGMENT09/03/1972

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN HEGDE, K.S.

CITATION:  1972 AIR 1826            1972 SCR  (3) 690  1972 SCC  (3) 684  CITATOR INFO :  R          1980 SC 101  (3)  R          1982 SC 818  (27)  F          1983 SC1272  (12)

ACT: Specific Relief Act (1 of 1877) repealed by Specific  Relief Act (47 of 1963)--Application for rescission of contract and decree  in  1967  under s. 35 of  1877  Act--When  dight  to rescission can be said to have accrued under s. 6 of General Clauses Act, 1897. Specific Relief Act (47 of 1963) s. 28-Scope of. Power of Court to   order rescission under the law  relating to specific relief--No time fixed  in  decree  for  specific performance -Effect of-Order of rescission by Court--Nature of. Decree  for  specific performance--If could be  executed  by defendant as money decree.

HEADNOTE: The appellant was the owner of 100% shares in Company ’A’ By an  agreement dated October 30, 1956, between the  appellant and  the  respondent, the respondent purchased  49%  of  the shares  with  an  option to purchase the  balance  of  51  % shares.   The  respondent exercised his option  but  as  the shares  were  not transferred to him he filed a  suit.   The suit  was  decreed and the decree for  specific  performance provided  that  the 51 % shares should be delivered  to  the respondent against payment by him to the appellant of  their value;  and an injunction was also granted  Restraining  the appellant   from  voting  except  in  accordance  with   the instructions  of  the  respondent.  Except  as  regards  the injunction,  the trail court, however, stayed  execution  of the decree and the stay was continued by the appellate court till the appeal was dismissed in 1965. The appellant filed an application in 1965 praying that  the respondent  may be directed to pay the consideration  amount within   such  time  as  the  Court  may  direct,  but   the application was dismissed. Meanwhile,  there were certain orders of attachment  of  the decree, whose effect was that the respondent was  prohibited and restrained from alienating, transferring or charging his right,  title and interest in the decree or  from  obtaining

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satisfaction thereof.  Further, in February 1965, a  company ’B’ which bad obtained a decree against a holding company of the appellant, applied for execution and got the 51% shares of the appellant attached.  The executing court ordered that those  shares  should  be  produced  for  delivery  to   the respondent against payment of the consideration mentioned in the specific performance decree. The ’A’ Company also instituted a suit against the appellant in  respect  of  payment  made  by  ’A’  to  the  Income-tax authorities  on  behalf  of the  appellant  and  prayed  for possession and sale of the 51% shares in the  691 exercise  of  their lien on those shares.   A  receiver  was appointed in respect of those shares and the Court directed that the Receiver would be at liberty deliver the 51% shares to  the  respondent on payment of the  consideration.   This order was communicated by the appellant to the respondent on January,  11, 1967, and even before that date the  appellant wrote  two letters to the respondent asking him to be  ready with  the amount to be paid by him and to take  delivery  of the  shares.  Those letters were refused by  the  respondent and  in  reply to the letter dated, January  11,  1967,  the respondent  raised the objection that the appellant was  not in  a position to give delivery of the shares and  that  the order of the Court was not binding on him because he was not a  party to the suit in which that order was passed.   By  a letter dated February 11, 1967, addressed to the respondent, the  appellant stated that the respondent had forfeited  his right  to  purchase  the  51%  shares  under  the   specific performance decree as he had failed to fulfil his obligation in  pursuance of the notice of the appellant  dated  January 11,  1967.  Thereafter, in March 1967, the. appellant  filed an  application for rescission of the agreement of  sale  of 1956  as  also the decree for specific  performance  of  the agreement. The  trial  court held that the respondent was not  keen  on paying the purchase money and get the transfer of 51% shares for  the  reason that the injunction granted  by  the  Court restraining  the  appellant  from voting  except  under  the instructions of the respondent made the respondent virtually the  owner  of  the 100% shares in ’A’  company,  with  full control, that therefore, the respondent had committed breach of  the  contract  which he  was  directed  specifically  to perform,  that  he  created a situation which  had  made  it impossible  for him to perform his part of  the  obligation, and  hence  the  decree for  specific  performance  must  be rescinded.   The trail court appointed the Receiver  in  the suit by the ’A’ company against the appellant as Receiver of the  51%  shares  and directed the  respondent  to  pay  the consideration money to the Receiver within a fortnight  from the date of the order and directed the Receiver to hand over the  shares to the respondent; and that, in default of  such payment  within  the  time specified the  contract  and  the decree  would stand rescinded, and that the appellant  would be absolved from all obligations thereunder. The appellate court however held that the application  filed by  the  appellant for the rescission of  the  contract  and decree  was not maintain,able under the Specific Relief  Act of 1877 or of 1963. Allowing the appeal to this Court, HELD: (1) The Specific Relief Act, 1877 was repealed by  the Specific Relief Act of 1963 and the appellant had no accrued right  on  the date of the repeal to  file  the  application under  s.  35 of the 1877Act read with s. 6 of  the  General Clauses Act, 1897. [700G-H]

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The  right to rescind the decree under s. 35 can arise  only if the purchaser makes default in paying the purchase  money ordered  to be paid under the decree.  But before the  lapse of reasonable time from the date of the decree the appellant could  have  no right to have the decree  rescinded  on  the ground of default.  Such a default had not occurred when the Specific Relief Act, 1877, was repealed as a reasonable time for  the performance of the obligation under the decree  had not  elapsed  from  the date of the decree.   There  was  no default  till 1965 in the Present case, as the execution  of the  decree was stayed by orders of the trial court and  the appellate court. [700D-G). 692 (2)  Since s. 28 of the Specific Relief Act, 1963,  provides only  for  an application for rescission, of a  decree  for specific performance for sale or lease of immovable property no application to rescind a decree for specific  performance of  an  agreement  to sell movables  would  lie  under  that section. [7Ol-A-B] (3) But the Specific Relief Act, 1963, is not an  exhaustive enactment,  and under the law relating to specific relief  a Court which passes a decree for specific performance retains control  ever  the  decree even after the  decree  had  been passed.   Therefore,  the Court, in the present  case,  ’re- tained control over the matter despite the decree and it was open to the Court, when it was alleged that the party  moved against had positively refused to complete, the contract, to entertain the application and order rescission of the decree if the allegation was proved. [701B-C; 703B-C] Ramdas  Khatau  & Co. v. Atlas Mills Co. Led.,  A.I.R.  1931 Bombay  151; Rahmath Unnissa Begum v.  Shimoga  Co-operative Bank  Ltd., A.I.R. 1951 Mysore 59; Firm Kishore Chand  Shiva Charan  Lal v. Budaun Electric Supply Co., A.I.R. 1944  All. 66,  77; Mohommadali Sahib v. Abdul Khadir Saheb, (1930)  59 M.L.J.  351;  Pearisundari Dassee v.  Hari  Charan  Mazumdar Chowdhry,  I.L.R.  15 Cal. 211; Someshwar Dyal v.  Widow  of Lalman  shah,  A.I.R.  1958 All. 488,  Anandilal  poddar  v. Gunendra,  A.I.R.  1966,  Cal. 107  and  Tribeni  Tewary  v. Ramratan Naina, A.I.R. 1959 Patna 460, referred to. (4) The respondent had, by his conduct and letter evinced an intention   not  to  perform  his  part  of  the   contract. Therefore,  the  fact  that no time had been  fixed  in  the decree  would  not  preclude the Court  from  adjudging  the contract as rescinded. [7O5 E-H] (a) If a contract does not specify time for performance  the law  will  imply under s. 46 of the Contract  Act  that  the parties  intended  that the obligation  under  the  contract should  he performed within a reasonable time  depending  on the  circumstances  of the case.  The Contract  between  the parties was not extinguished by the passing of the  specific performance decree and as the contract subsisted despite the decree,  and as the’ decree did not abrogate or modify  any of  the express or implied terms of the contract it must  be presumed  that  the parties to the contract were  under  the obligation to complete it within a reasonable time. [7O3E-H] (b) The respondent, by exercising his option to purchase the 51%  shares  became entitled to obtain a conveyance  of  the share  from the appellant on payment of the purchase  money. There  was  no  provision  in  the  agreement  as  to   when thereafter   the   appellant  should  convey   the   shares. Therefore,  it  was  open  to  either  party  to  make  time essential by intimating the other party, after a reasonable period,  about it after expressing its or his readiness  and willingness  to.  perform its or his  obligation  under  the contract.  The liberty was not taken, away because a  decree

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had  been  passed for specific performance of  the  contract without fixing the time for its performance. [7O3H; 704A-C] Observations in Fry on Specific Performance 6th edn. p.  546 and  Halsbury’s Laws of England 3rd edition vol. 36, 351  to 352, explained. (5) As the receiver had the shares in his possession, and as there was an   order  of the Court directing him to  deliver possession ’of the shares on  payment of the purchase money, intimation regarding which was given by the appellant to the respondent, there is no substance in the objection that  the appellant  was  not in a position to  deliver  the  shares., [705F-G] 693 (6)  When. the Court adjudges rescission of a contract or  a decree  it is only concerned with the question whether,  the person  rescinding  it was justified in doing  so.   In  the present  case when the appellant came to the Court with  its application for rescission there was already a rescission of the contract and the decree by its letter dated February 11, 1967.   It  only wanted a declaration by adjudgment  by  the Court that it was justified in doing so.  The Court did  not create  any right which the parties did not possess when  it made  a  declaration  that the  contract  had  been  validly rescinded.  Merely because it is necessary for the Court  to pass  such an order it does not follow that it is the  Court that  rescinds the contract.  It is only deciding  upon  the validity of the rescission already made by the party. [7O6A- E] Therefore,  the respondent could not complain that,  because the appellant obtain a stay of the order passed by the trial court  giving the respondent a fortnight’s time to  pay  the purchase  money the appellant prevented him from paying  the purchase money, and resist the prayer for rescission. [7O6A- B] Abram  Steamship Company Ltd. v. Westville Shipping  Company Ltd.  L.R. [1923] A.C. 781, referred to. (7)  There  is  no  substance  in  the  contention  of   the respondent that the appellant was not in a position to  give a  good  title to the shares because ’A’ company  claimed  a lien in respect of the shares. [707C-D] (8)  It  could  not  be contended that  the  remedy  of  the appellant was to execute the decree for specific performance as a decree for money. [7O9B-C] A  decree for specific performance is a decree in favour  of both  the plaintiff and defendant in the suit, but it  could be  executed only in the manner prescribed by 0.31,  r.  32, C.P.C.  The  appellant could not have  executed  the  decree against  the respondent as a money decree and  realised  the purchase  money  from  him.  Therefore,  if  the  respondent refused  to pay the purchase money there was  nothing  which prevented the appellant from applying for rescission of  the decree. [7O7E-H; 708G-H; 709] Heramba Chandra Maitra v. Jyotish Chandra Sinha, A.I.R. 1932 Cal. 579 and Bai Karimabibi v. Abderahman Sayad Banu, A.I.R. 1923 Bom. 26, referred to. (9) The only question with which the Court was concerned was whether the respondent had disabled himself from  performing his part of the obligation under the decree.  The fact  that attachments  of the decree by creditors prevented  him  from performing  his part of the obligation under the  decree  or obtain  satisfaction  thereof would not him any the  less  a defaulter  so  far  as  performance  of  his  part  of   the obligation under the decree is concerned. [709E-G] (10)  There  is  no substance in  the  contention  that  the attachment,   by  B-company  of  the  51%  shares  made   it

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impossible  for, the appellant to deliver the shares to  the respondent  as  the attachment order directed that  the  51% shares  should  be produced for delivery to  the  respondent against  payment  of  the  consideration  mentioned  in  the specific Performance decree. [709G-H]

JUDGMENT: CIVIL APPELLATE JUIUSDICTION: Civil Appeal No. 488 of 1971. --1031 Sup.CI/72 694 Appeal  from  the judgment and, decree dated  September  14, 1970 of the Calcutta High Court in Appeal No. 148 of 1969. S.   Y. Gupte, S. B. Mukherjee, B. N. Garg, K. K. Jain, D.   N.  Sinha, Lina Seth, M. M. N. Pombra and H.  K.  Puri, for the appellant. R.   C.  Dev, Somnath Chatterjee, M. Bose, S. Swarup and  P. C. Bhartari, for respondent No. 1. A.  K. Sen, Shanker Ghosh, D. N. Gupta, N. Khaitan,  Krishna Sen and B. P. Singh, for respondent No. 4. S. S. Khanduja, Promod Swarup and Lalita Kohli, for  respon- dents Nos. 7 and 8. Gobind Das and B. D. Sharma, for respondent No. 1. The Judgment of the Court was delivered by Mathew,  J.-  This  is an appeal with  certificate-  from  a judgment  of  a Division Bench of the Calcutta  High  Court, setting  aside  the  order of a single judge  of  the  Court allowing   an  application  filed  by  the   appellant   for rescission of an agreement for sale dated October 30,  1956, as  also  the decree dated February 25, 1964,  for  specific performance  of  the  agreement and  for  other  alternative reliefs specified in the application. Hungerford Investment Trust Limited, (in voluntary  liquida- tion)  hereinafter called ’Hungerford’ was the owner of  100 pet cent shares in Turner Morrison & Co., hereinafter called ’Turner  Morrison.  John Geoffrey Turner and Nigel  Frederic Turner, both since deceased, were the owners of the 100  per cent  shares  of Hungerford.  The entire  share  capital  of Turner  Morrison consisted of 4,500 fully paid  up  ordinary shares of Rs. 1,000/each. By  exchange of letters it was agreed that Haridas  Mundhra, hereinafter    called   ’Mundhra’   would   purchase    from ’Hungerford,  49  per cent shares of Turner  Morrison.   The agreement also provided for an option to Mundhra to purchase from Hungerford, the balance of 51 per cent shares of Turner Morrison  within 5 years.  A formal agreement dated  October 30,  1956, was ’executed between Hungerford,  John  Geoffrey Turner  and  Nigel  Frederic Turner on  the  one  hand,  and British India Corporation and Haridas Mundhra on the  other, embodying  the  terms of the agreement.   Pursuant  to  this agreement, 49 per cent of the shares in Turner Morrison  was sold  and  transferred to Mundhra and  his  nominee  British India Corporation.  Thereafter, Mundhra exercised his option to purchase, the 51 per cent shares.  But the 695 shares  were not sold or transferred to him.  So, on  April 19,  1961, Mundhra filed a suit. against Hungerford,  Turner Morrison   and  others  for  specific  performance  of   the agreement  to sell the 51 per cent shares (Suit No.  600  of 1961).   As Mundhra did not want to proceed  against  Turner Morrison, the suit was dismissed as against that company and a  decree  was  passed on February  25,  1964.   The  decree provided  that the agreement relating to the sale of 51  per cent  ordinary  shares  of  Turner  Morrison  ought  to   be

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specifically performed and directed Hungerford to deliver to Mundhra,  the  51  per cent shares against  payment  of  the consideration  of Rs. 86,60,000/-.  An injunction  was  also granted  restraining Hungerford and the other defendants  in the   suit  from  voting  except  in  accordance  with   the instruction  of  Mundhra  and  restraining  Hungerford  from selling  the shares to any person other than  Mundhra.   The decree, except as regards the injunction, was stayed by  the trial  judge,  on the application of the  appellant,  for  3 weeks. Hungerford,  along  with  some other  defendants,  filed  an appeal  from the decree on March 18, 1964 (Appeal No. 69  of 1964) and obtained a stay of execution of the decree  except in  so  far  as  it related to  the  injunction,  until  the disposal of the appeal.  The appeal was dismissed on  August 26,  1964,  for  the reason that it  was  withdrawn  by  the appellant,  leaving Mundhra free to perform his part of  the obligation under the decree. By a Master’s summons dated August 30, 1965, Hungerford made an  application  praying  that Mundhra may  be  directed  to implement  the decree by paying Rs. 86,60,000/,  the  unpaid purchase  money, within such time as the Court  may  direct, that Hungerford be directed to execute proper transfer deeds in  respect of the 5 1 per cent shares within such  time  as the Court may direct; and that in default of payment of  Rs. 86,60,000/-  by Mundhra within the period to be  fixed,  the Court  may  order the rescission of the  agreement  and  the decree.   The  application was dismissed  on  September  28, 1965,  by Justice Ray, holding that the application was  one for execution of the decree in Suit No. 600 of 1961 and must be in a tabular form and "that any imposition of time  limit Would  be to engraft something on the decree which does  not exist  in  the  decree’.   Hungerford  preferred  an  appeal against the said order (Appeal No. 286 of 1965).  The appeal was  dismissed  on  August  8,  1966.   The  application  of Hungerford  for  leave  to appeal to  this  Court  was  also dismissed on November 25, 1968. Before the dismissal of appeal No. 69 of 1964 filed  against the decree for specific performance in suit No. 600 of 1961, the  Certificate  Officer,  24 Parganas  had  attached  that decree,  as Mundhra failed to satisfy six certificates  then pending against him. 696 In  pursuance  to  a Memorandum issued  by  the  Certificate Officer.Ray,  J. made an order dated March 2, 1964,  staying the execution of the decree until cancellation of the notice by the Certificate Officer or until the Certificate  Officer or  the  debtor applied for execution of  the  decree.   The decree  in  suit  No.  600 of  1961  was  also  attached  in execution of three other decrees, namely the decree obtained by Champaran Sugar Co. Ltd. and B British India  Corporation Ltd.  in suit No. 179 of 1960 of the Court of  Civil  Judge, Kanpur  and  those obtained by Kanpur Sugar Works  Ltd.  and British  India Corporation Ltd. in suit No. 178 of  1960  in the  Court  of  Second  Civil Judge,  Kanpur  and  the  Life Insurance Corporation of India in special. appeal No. 299 of 1961  of the High Court of Allahabad.  The effect  of  these orders  of -attachment was that the  decree-holder  Mundhra was prohibited and restrained from alienating,  transferring or  charging his right, title and interest in the decree  in suit No. 600 of 1961 or from obtaining satisfaction thereof. In  February,  1965, Bank Hoffman A.G. obtained a  decree  D from  Queen’s Bench Division, London, for pound  657,345-17- 9d.with  interest at 41 per cent per annum from the date  of decree  against Romanigo Holdings S.A.H., a holding  company

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of  Hungerford  and also against Hungerford.   Bank  Hoffman executed  the decree in the Court of District Judge,  Delhi, and got the 51 per cent shares of Hungerford attached.   The District Judge ordered the attachment and directed that  the 51 per cent shares be produced in the High Court of Calcutta for  delivery  to Mundhra against payment  of  consideration mentioned in the specific performance decree. Hungerford  was in control of Turner Morrison upto  February 25, 1964, when the injunction in regard to voting rights was granted.   It  had kept scripts of 707 shares out  of  2,295 shares  in the office of Turner Morrison.  When Mundhra  got control  of  Turner Morrison, these scripts went  under  his control  and power.  The Liquidators of Hungerford wrote  on December 12, 1964, to Turner Morrison to deliver the scripts of  707  shares to M/s Sanderson and Margon,  solicitors  of Hungerford.   The  request for delivery of  707  shares  was repeated  by  Sanderson  and Margon on  December  22,  1964. Turner Morrison wrote a letter on January ll, 1965 to K.  N. Srivastava,  Income Tax Officer, if the 707 shares’  scripts could  be  delivered  to Hungerford and if  the  Income  Tax Officer had any objection to such delivery.  On January  13, 1965, Turner Morrison’s solicitors wrote to M/s.  Sanderson and  Morgan  that  707 shares, had become  the  property  of Mundhra  and, for the first time, also claimed:  that  there was  a  lien  on  the shares.  On January  18,  1956  K.  N. Srivastava, the Income Tax.  697 Officer, wrote a letter raising objection to the delivery of 707   .shares  to  Hungerford  although  the     Income   Tax Department had no claim on these shares. Turner Morrison instituted a suit against Hungerford  (Suit No.  2005 of 1965) in the Calcutta High Court claiming  Rs., 79,70,802 as principal and Rs. 47,96,250.16 as interest,  in respect  of  payment made by Turner Morrison to  Income  Tax authorities  on behalf of Hungerford under section 23(a)  of the  Indian Income Tax Act, 1922.  A claim was also made  in the suit for possession and sale of the 2,295 shares in  the exercise  of their lien on those shares under Article 22  of the Articles of Association of the Company.  Mundhra was not a  party  to  the suit.  Turner Morrison  made  an  ex-parte application in the suit on July 8, 1966, for appointment  of a  receiver in respect of the 2,295 shares.  Mr. K. B.  Bose was  appointed  receiver, and he took  possession  of  1,588 shares  from  the First National City Bank. and  707  shares from  the Police.  On July 13, 1966, Sen J. passed an  order confirming  the  order of appointment of  the  receiver  and directing  that the receiver will be at liberty  to  deliver the  51  per  cent of shares to Mundhra on  payment  of  Rs. 86,60,000/-  in  performance of his part of  the  obligation under the decree, if so required by the Court hearing appeal No.  286 of 1965.  The order also provided that  if  Mundhra takes the shares on payment of the price directed to be paid by  the decree, or in direction of the Court of appeal,  the lien if any, as claimed by Turner Morrison will shift on  to the money which the receiver would get from Mundhra. Turner  Morrison preferred an appeal against the  order  and applied for stay of the order.  The stay was refused but the appeal   was partly allowed on September 2, 1968, by setting aside  the  direction given to the receiver  to  tender  the shares  to  Mundhra as also the direction that the  lien  of Turner Morrison would shift to the purchase money to be paid by Mundhra. On  March 21, 1967, the application from which  the  present appeal arises, was made by Hungerford (the appellant hero,-) be   fore  the High Court.  The prayers in  the  application

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were   inartistically  worded.   It  was  prayed  that   the agreement  dated  October  30, 1956, and  the  decree  dated February  25,  1964,  passed  in suit No.  600  of  1961  be rescinded, that the injunction granted by the decree in the suit  be  vacated unless Mundhra (the 1st  respondent  here) deposits  Rs. 86,60,000/. in the Court or with the  receiver in  suit  No. 2005 of 1965, that the receiver  appointed  in suit  No. 2005 of 1965 be appointed as receiver in the  suit for  specific  performance  in respect  of  the  said  2,295 shares,  that the receiver be directed to tender, on  a  day certain, the said shares to 698 Mundra,  and  Mundhra  be directed to pay  the  sum  of  Rs. 86,60,000/- to the receiver on that day and to declare  that if  Mundhra failed to pay the amount to the receiver  on  or before  ,the day, the agreement dated October 30,  1956  and the  decree dated February 25, 1964, would stand  rescinded. This application was allowed by Masood J. The  learned judge overruled the objection of  Mundhra  that the  application was not maintainable and held that  it  was maintainable  under- section 35 of the Specific Relief  Act, 1877, notwithstanding the repeal of that Act by the Specific Relief  Act,  1963, as the appellant had, an  accrued  right under  the section to make the application even  before  the repeal. The  learned judge then found that Mundhra was not  keen  in paying the purchase money and getting transfer of the 51 per cent  shares for the reason that the injunction  granted  by the Court in the decree in suit No. 600 of 1961  restraining the  appellant  from voting except in  accordance  with  the instruction  of Mundhra made him virtually the owner of  100 per  cent shares in Turner Morrison, and if  without  paying any amount for the 51 per cent shares of Turner Morrison, he got  control of Turner Morrison, it was to his interest  not to pay anything to the appellant. As regards the objection by Mundhra that since Turner Morri- son claimed a lien on the 51 per cent shares and, therefore; the appellant was not in a position to deliver the  shares free from encumbrance, he held that there was no  bona-fides in  the claim of Turner Morrison : firstly because the  lien was  not set up by Turner Morrison in its written  statement in  the  suit  filed by Mundhra  for  specific  performance, secondly  because  in  the suit  filed  by  Turner  Morrison claiming,the lien, Mundhra, who was interested in the shares upon  which  the lien was claimed was not made a  party  and thirdly for the reason that by his letter dated November 29, 1955, Mundhra had agreed that Turner Morrison would pay  the income tax liabilities of Hungerford to the extent of Rs. 46 lakhs.   The  learned Judge found it impossible  to  believe that Mundhra had no knowledge about the suit filed by Turner Morrison claiming the lien as he was in complete control  of Turner Morrison at the time the suit was filed and said that Turner  Morrison and Mundhra were colluding with each  other to  defeat the appellant in its attempt to get the  purchase money  from  Mundhra  and that suit No.  2005  of  1965  was instituted  with  the connivance, of Mundhra.   The  learned judge also found that even if Turner Morrison had a lien  on those shares, since there was no covenant for tide, Mundhra was  :not  justified in declining to take  delivery  of  the shares on the score that Turner’Morrison had a lien upon the shares.  699 The  learned judge, after evaluating all  the  circumstances ultimately  came  to the conclusion that  Mundhra  committed breach of the contract which he was directed specifically to

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perform,   that  he  created  a  situation  which  made   it practically  impossible for him to perform his part  of  the obligation  under the decree land that the  agreement  dated October 30, 1956 and the decree dated February 25, 1964, for specific performance must be rescinded.  The learned  judge, therefore,  appointed the receiver in suit No. 2005 of  1965 as  receiver of the 51 per cent shares and directed  Mundhra to  pay Rs. 86,60,000/- to the receiver within  a  fortnight from the date of the order and the receiver to hand over the 51  per  cent of the shares to Mundhra’s solicitors  if  the amount was paid as directed.  The receiver was also directed to pay the amount to the solicitors of Hungerford.  The stay order  passed  by Ray J. on March 2, 1964, was  vacated  and liberty  was  given to the Certificate Officer  or  the  Tax Recovery  Officer,  24 Parganas to take such  steps  against Mundhra  as  he thought fit.  In default of payment  of  Rs. 86,60,000/-  by  Mundhra to the receiver with  in  the  time specified,  the  Court directed that the  contract  and  the decree  would stand rescinded and Hungerford  absolved  from all obligations under the said contract and the decree. Against the decision, the appellant filed appeal No. 148  of 1969 before a Division Bench of the Court and Mundhra  filed a cross-objection. The  appellate Court found that if Mundhra was really  inte- rested  in  getting  transfer of the shares  by  paying  the money, he would not have allowed the opportunity to  acquire the shares under the order dated July 13, 1966, to slip  by, that Mundhra knew of the order of July 13, 1966, and also of the opportunity given to him by the order to get delivery of the shares on payment of the purchase money, but that he did not avail of the opportunity for the reason that, if without paying  money, he could virtually enjoy the same  advantage, it  would be foolish from a businessman’s point of  view  to invest  any  amount  in purchasing the  shares.   The  Court observed               "A  businessman who files a suit for  specific                             performance  of  a contract to buy  sh ares  and               prosecutes   that   suit   to   a   successful               termination  in his, favour, will not  fritter               away the benefit under the decree except for a               higher   or   superior  advantage   and   that               advantage Mundhra got under the decree in suit               No. 600 of 1961." The Court then held that application filed by the  appellant for rescission of the contract and the decree was _not main- tainable.  The reasoning of the Court was two-fold. no Court 700 said  that the appellant had no accrued, right to apply  for rescission  under  section 35 of the  Specific  Relief  Act, 1877,  which  would survive the repeal of that  Act  by  the Specific  Relief  Act,  1963, and  so,  no  application  for rescission  would lie under section 35 of the old  Act  read with  section  6  of  the General  Clauses  Act,  1897.   It then,held that since section 28 of the Specific Relief  Act, 1963, only provided for rescission of a decree for  specific performance of a contract for the sale or lease of immovable property, the application was incompetent under the  section and allowed the appeal and cross-objection in part. We do not think that the appellant had an accrued right  for rescission  of  the  contract or  the  decree  for  specific performance  under  section 35 of the Specific  Relief  Act, 1877, when the Act was repealed by the Specific Relief  Act, 1963, on March 1, 1964.  It may be recalled that the  decree in suit No. 600 of 1961 was passed on February 25, 1964  and

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that the application for rescission of the decree was  filed on  March 21, 1967.  Section 35 of the Specific Relief  Act, 1877, so far as it is material for the purpose of this case, provided  that where a decree for specific performance of  a contract  of sale or of a contract to take a lease has  been made and the purchaser or lessee makes default in payment of the purchase money, which the Court has ordered him to  pay, the decree may be rescinded as regards the party in  default either by a suit or by an application.  The right to rescind the decree under the section can arise only if the purchaser makes  default  in paying the purchase money ordered  to  be paid  under  the decree.  Before the lapse of  a  reasonable time  from the date of the decree, the appellant could  have no  right  to  have the decree rescinded on  the  ground  of default  of  the purchaser.  To put it in other  words,  the right  of  the,appellant to have the  decree  rescinded  was dependent  upon the default of the purchaser in  paying  the purchase  money.  Such a default had not occurred  when  the Specific  Relief  Act, 1877, was repealed, as  a  reasonable time for the performance of the obligation under the  decree had  not  elapsed  from the date of the  decree.   The  more important  reason why there was no default in this case  was that the execution of the decree in suit No. 600 of 1961 was stayed  by  orders  of the trial and  appellate  Court  till August  26, 1964.  We, therefore, agree with the finding  of the  Division Bench that the appellant had no accrued  right on  the  date  of the repeal to file  an  application  under section 35 of. the Specific Relief Act 1877, which was saved under section 6 of the General Clauses Act, 1891.  The  mere right  to take advantage of the provisions of an Act is  not accru ed right [see Abbott v. The Minister for plans(1)]. (1) [1895] A.C. 425. 701 We  also agree with the finding of the Division  Bench  that since section 28 of the Specific Relief Art. 1963,  provides only  for  An  application for rescission of  a  decree  for specific  performance  for the sale or  lease  of  immovable property,  no application to rescind a decree for  specific performance  of  an agreement to sell  movables,  would  lie under that section. The  question then is whether the application was  maintain- able  under  any other provision of the law.   The  Specific Relief  Act, 1963, is not an exhaustive enactment.  It  does not  consolidate  the  whole law on  the  subject.   As  the preamble  Would indicate, it is an Act "to define and  amend the  law relating to certain kinds of specific relief".   It does  not purport to lay down the law relating  to  specific relief in all its ramifications.  In Ramdas Khatau & Co.  v. Atlas Mills Co. Ltd.(1) it was held that the Specific Relief Act, 1877, was not exhaustive.  In Rahmath Unnissa Begum  v. Shimoga  Co-operative  Bank Ltd. another(2) the  Court  said that  the Specific Relief Act, 1877, is founded  on  English equity jurisprudence and that it is permissible to refer  to English  Law  on the subject wherever the Act did  not  deal specifically  with  any topic [see also Firm  Kishore  Chand Shiva  Charan Lal and another v. Budaun Electric Supply  Co. Ltd.(3)]. Although a matter on which the Act defines the law it might generally be exhaustive, the Act as a whole  cannot be  considered as exhaustive of the whole branch of the  law of specific performance. It  is settled by a long course of decisions of  the  Indian High  Courts  that  the  Court which  passes  a  decree  for specific  performance retains control over the  decree  even after the decree has been passed.  In Mahommadalli Sahib  v. Abdul  Khadir  Saheb(4)  it was held that  the  Court  which

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passes  a decree for specific performance has the  power  to extend  the  time, fixed in the decree for the  reason  that Court  retains  control over the decree, that  the  contract between the parties is not extinguished by the passing of  a decree  for  specific  performance  and  that  the  contract subsists  notwithstanding  the passing of  the  decree.   In Pearisundari Dassee v. Hari Charan Mozumdar Chowdhry(5)  the Calcutta High Court said that the Court retains control over the proceedings even after a decree for specific performance has  been  passed,  that the decree passed  in  a  suit  for specific performance is not a final decree and that the suit must,  be deemed to be pending even after the decree.   The same view was taken in Someshwar Dayal and others v. Widow of  Lalman  Shahand  others(6)..  In  Anandilal  Poddar   v. Gunendra Kr.  Roy and another(7) Raj J, speaking (1) A.I.R.1931 Bombay 151. (2)  A.I.R. 1951 Mysore 59. (3)  A.I.R. (31) 1944 Allahabad 66 at p. 77. (4)  (1930) M.L.J. Vol. 59, p. 351. (5)  I.L.R. Calcutta Series, Vol.  XV, p. 211. (6)  A.I.R.  1958 Allahabad 488. (7)  A.I.R. 1966 Calcutta 107. 702 for the Court, said that the court retains control over  the matter even after passing ’a decree for specific performance and  that  virtually,  the  decree is in  the  nature  of  a preliminary one,.  In Tribeni Tewary and others v.  Ramratan Nonia  and  others(1)  it was held that  the  Court  retains seisin  of the case notwithstanding the fact that  a  decree for specific performance has been passed and that the decree is  really in the nature of a preliminary decree.   Fry  in’ his  book(2)  on  Specific Performance  states  the  law  in England as follows "It may and not unfrequently does happen that after judgment has  been given for the-specific performance of a  contract, some further relief becomes necessary, in consequence of one or other of the parties making default in the performance of something which ought under the judgment to be performed  by him or on his part; as for instance, where a vendor  refuses or  is unable  to  execute  a  proper  conveyance  of  the property, or a purchaser to pay the purchase money..... "There  are two kinds of relief after judgment for  specific performance of which either party to the contract may, in  a proper case, avail himself : (i)  He  may  obtain  (on motion in  the  action)  on  order appointing  a definite time and place for the completion  of the  contract by payment of the un-paid  purchase-money  and delivery over of the executed conveyance and title deeds, or a period within which the judgment is to be obeyed, and,  if the  other party fails to obey the order, may  thereupon  at once  issue a writ of sequestration against  the  defaulting party’s estate And effects........" (ii) He may apply to the Court (by motion in the action) for an  order  rescinding the contract.  On  an  application  of kind,  if  it  appears  that the  party  moved  against  has positively  refused to complete the contract, its  immediate rescission may be ordered; otherwise, the order will be for rescission   default   of  completion   within   a   limited time......" (1) A.I.R. 1959 Patna 460. (2) Fry on Specific Performance, 6th ed. p.546.  703               In  Halsbury’s laws of England(1) the  law  is               stated as under               "Ancillary   relief  may  be  obtained   after

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             judgment   in   an   action   for,    specific               performance where such further relief  becomes               necessary........               Either   party  may  also  obtain   an   order               rescinding   the   contract  in   default   of               completion within a fixed time." As  the Court retained control over the matter  despite  the decree,  it was open to the Court, when it was alleged  that them party moved against has positively refused to  complete the   contract  to  entertain  the  application  and   order rescission of the decree if the allegation was proved.   We, therefore,  think that the application of the appellant  was competent. It  was  contended on behalf of Mundhra that he  was  always ready  and willing to pay the purchase money, but since  the decree  did not specify any time for payment of  the  money, there  was  no default on. his part.  In  other  words,  the contention was that since the decree did not specify a  time within.  which the purchase money should be paid and,  since an application for fixing the time was made by the appellant and  dismissed by the Court, Mundhra cannot be Said to  have been  ’in default in not paying the purchase money  so  that the appellant might apply for rescission of the decree.   If a  contract does not specify the time for  performance,  the law   will  imply  that  the  parties  intended   that   the obligation, under the contract should be performed within  a reasonable  time.  Section 46 of the Contract  Act  provides that  where,  by  a  contract,  a  promisor  is  to  perform his,promise without application by the promisee, and no time for  performance  is  specified,  the  engagement  must   be performed  within a reasonable time and the question "  what is reasonable time" is, in each particular case, a  question of’  fact.   We  have already indicated  that  the  contract between  the parties was not extinguished by the passing  of the  decree, that it subsisted notwithstanding  the  decree. It  was an implied term of’ the contract and, therefore,  of the decree passed thereon that the parties would perform the contract  within  a reasonable time.  To, put  it  in  other words,  as the contract subsisted despite the decree and  as the decree did not abrogate or modify any of the express  or implied terms of the contract, it must be presumed that  the parties  to the decree had the obligation, to  complete  the contract within, a reasonable time. The matter can be looked at from another angle.  Mundhra  by exercising  the option to purchase the 51 per  cent  shares, became  entitled to obtain a conveyance of the  shares  from the apellant on payment of the purchase money.  ’Mere was no (1) Halsbury’s Laws of England 3rd Ed,, Vol, 36. 351-52. 704 vision  in the agreement at what time or within what  period after the exercise of the option the appellant should convey the  shares against the payment of the purchase money.   But it  was  open  to either party to  make  time  essential  by intimating  the other party after a reasonable period  about it after expressing its or his readiness and willingness  to perform  its  or his obligation under  the  contract.   That liberty was not taken away because a decree has been  passed for specific performance of the contract without fixing  the time  for the performance.  The appellant could,  therefore, have called upon Mundhra to pay the purchase money and  take delivery  of  the shares within reasonable time.   The  fact that  the  decree  did not fix a  time  for  completing  the contract  did not  prevent either party  from  demanding performance  from other party within a reasonable  time  and thus  make time essential, as the parties had  that  liberty

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before  the decree was passed and the decree did  not  abrog ate  that  liberty in any way, and if the party  ’from  whom performance was demanded evinced by his conduct that he  was unwilling to perform his part, then it was open to the party claiming  performance to rescind the contract and obtain  an ,order  from the Court adjudging rescission of the  contract and the decree thereon.  We do not think, in case the Court comes to the conclusion that the party moved against has  by conduct evinced an intention not to perform his part of  the contract,  the  fact  that no time has been  fixed  in  the decree  would  preclude it from adjudging  the  contract  as rescinded.   The observation of Fry already quoted does  not mean that unless a time is specified in the decree there can be  no  default.  It only means that if the conduct  of  the party  moved against is equivocal, an order  for  rescission will  be  made  only  in  default  of  completion  within  a specified  time.  Nor can the observation quoted above  from Halsbury’s Laws of England bear any other construction.   We have  already  indicated  that section 28  of  the  Specific Relief Act. 1963, deals only with rescission of a decree for specific  performance  "of  an agreement to  sell  or  lease immovable  property  and  so the terms of  the  section  are hardly  relevant in deciding the question whether there  can be  default  without fixing the time for  performance  in  a decree  for  specific performance of an  agreement  to  sell movables.   We think it unnecessary to decide  the  question whether,  under arty circumstances, there can be default  of performance  where a decree for specific performance  of  an agreement  to  sell  or lease immovable  property  does  not specify  the  time  of performance for  the  purpose  of  an application for rescission of the decree. It is no doubt true that after the, decree in suit No.  600 of 1 96 1, a stay was’obtained by the appellant  preventing the execution of the decree: an appeal was also prefer-red against  that  decree  and  a stay  obtained  for  the  same purpose, from the appellate court and  705 that the order continued in force till the, disposal of  the appeal  Oil  August 26, 1965.  Till then, there  can  be  no question  of  Mundhra being in default because  he  was  not required  by the orders of Court to perform his part of  the obligation  under the decree.  But the: question is, was  he in default after August 26, 1965, in performing his part  of the obligation under the decree ? Counsel for Mundhra relied upon  the observations in the order of Ray J. passed on  the application on the Master’s summons as well as in the  order passed  in the appeal (No. 286 of 1965) therefrom on  August 18,  1966, to show that there was no offer by the  appellant to  deliver the shares. and, therefore, Mundhra was  not  in default  in paying the purchase money.  It will be  recalled that  on July 13, 1966, Son J. passed the order in suit  No. 2005 of 1965 directing Mundhra to pay the purchase price and take delivery of the shares from the receiver.  The  learned judge  further  directed that the lien, if  any,  of  Turner Morrison would shift to the purchase money to be paid to the receiver.   This  order, though passed in suit No.  2005  of 1965  in which Mundhra was not a party, was communicated  to him  by the letter of the appellant dated January It,  1967. Even  before that, two letters had been sent on July 28  and July  29,  1966, by the appellant’s  solicitors  to  Mundhra asking him to be ready with the sum to take delivery of  the shares  before  the Court hearing appeal No.  286  of  1965. This  was refused by Mundhra by his letter dated’ August  2, 1966.   In the reply of Mundhra dated January 25,  1967,  to the  letter dated January 11, 1967, from the  appellant,  he

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raised  the  objection  that  the appellant  was  not  in  a position  to give delivery of the shares and that the  order dated July 13, 1966, was not binding on him, as he was not a party  to  the suit in which the order was passed.   As  the receiver  had  the shares in his possession,  there  was  no point in the objection raised by Mundhra that the  appellant was  not  in  a position to deliver the  shares.   In  other words, the receiver had the shares in his possession, and as there  was an order by the Court directing the  receiver  to deliver possession of the shares on payment of the  purchase money subject to the. order of the Court hearing appeal  No. 286  of 1965, there was no substance in the  objection  that the appellant  was  not in a  opposition  to  deliver  the shares.   Mundhra did not raise any objection on  the  score that  the appellate court has not made any direction  asking him  to pay the purchase money as against the  delivery  of the  shares  by the receiver or that the  receiver  was  not directed  by  that Court to deliver the  shares.   The  only legitimate  inference from his conduct is that  Mundhra  was deliberately putting forward the plea that the appellant was not  in a position to deliver the share-, and that  it  was not  ready and willing to perform its part of  the  contract only  to avoid payment.of the purchase money.  Nor is  there any substance in the contention of counsel for Mundhra  that because the appellant obtained a stay of the order passed by Masud T. giving- 706 Mundhra  a  fortnight’s time to pay the purchase  money  for taking delivery of the shares, the appellant- was  precluded from  contending  that  Mundhra  committed  default  in  the payment of the amount.  In other words, there is no point in the  contention of counsel that since the  appellant  itself obtained  a  stay  of the order passed by  Masud  J.  giving liberty  to  Mundhra  to pay the  purchase  money  within  a fortnight  from  the date of the order, the  appellant  pre- vented  Mundhra from performing his part of  the  obligation under  the  decree  in  suit No.  600  of  1961.   When  the appellant  came  to  the  Court  with  its  application  for rescission,  there was already a rescission of the  contract and  the  decree  by its letter  dated  February  11,  1967, stating that Mundhra had forfeited his right to purchase the 51  per cent shares in pursuance of the decree in  suit  No. 600  of  1961,  as he failed to  fulfil  his  obligation  in pursuance  to  the notice ’of the appellant on  January  11, 1967.  it  only wanted a declaration by  adjudgment  by  the Court that it was justified in doing so.  A court  generally adjudicates upon the antecedent rights of the parties.  When a Court adjudges rescission of a contract or a decree, it is only   concerned  with  the  question  whether  the   person rescinding it was justified in doing so.  The Court does not create any right which parties did not possess when it makes a  declaration that a contract has been  validly  rescinded. Merely  because  it is necessary for the Court  to  pass  an order of rescission, when a controversy arises, it does  not follow that it is the Court that rescinds the contract.  The Court  is only passing upon the validity of  the  rescission already made by the party.  In Abram Steamship Company  Ltd. and  another  v. Westville Shipping Company  Ltd.(1),  their Lordships of the House of Lords said               Where  one  party to a contract  expresses  by               word or art in an unequivocal manner that  by               reason  of  fraud  or  essential  error  of  a               material  kind inducing him to enter into  the               contract  he has resolved to rescind  it,  and               refuses  to be bound by it, the expression  of

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             his  election,  if  justified  by  the  facts,               terminates  the contract, puts the parties  in               status  quo  ante  and  restores  things,   as               between  them, to the position in  which  they               stood before the con-, tract was entered into.               It may be that the facts impose upon the party               desiring   to  rescind  the  duty  of   making               restitution  in  integrum.   If  so,  be  must               discharge that duty before the rescission  is,               in  effect  accomplished.  But  if  the  other               party  to the contract questions the right  of               the  first.  to  rescind,  thus  obliging  the               latter  to bring an action at law  to  enforce               the  right he has secured for himself  by  his               election,  and he later gets a verdict, it  is               an  entire mistake to suppose that it is  this               verdict   which  by  itself   terminates   the               contract and restores the antecedent (1) Law Reports, Appeal Cases, 1923, p. 773 at p. 781.  707               status.   The verdict is merely  the  judicial               determination of the fact that the  expression               by  the plaintiff of his election  to  rescind               was  justified, was effective, and put an  end               to the contract........" The  rights  of  the parties became  crystallized  when  the appellant, by its letter dated February 11, 1967,  rescinded the contract and the decree based thereon and when Masud  J. adjudged  that  the contract and the  decree  be  rescinded. Mundhra cannot, therefore, complain that he was prevented by appellant from paying the purchase money in pursuance of the order of Masud J. and resist the prayer for rescission. There  is  no  substance in the contention  of  counsel  for Mundhra  that the appellant was not in a position to give  a good title to the shares because Turner Morrison has a  lien upon the shares.  The question whether Turner Morrison has a lien upon the shares has been finally decided by this  Court in  Appeal  No. 1223 (N) of 1970 filed by  Turner  Morrison, holding that they have no lien in respect of these shares. It  was contended that if Mundhra committed default in  pay- ment of the purchase money, the remedy of the appellant  was to execute the decree for specific performance as the decree was a decree in favour of both the appellant and Mundhra and that the decree in favour of the appellant was a decree  for money. A  decree for specific performance is a decree in favour  of both  the  plaintiff  and the defendant  in  the  suit.   In Heramba   Chandra  Maitra  v.  Jyotish  Chandra  Sinha   and others(1)  Rankin C.J., speaking for the Court, said that  a decree  for specific performance operates in favour of  both plaintiff  and defendant and that the decree is  capable  of being  executed  by  either  [see  also  Bai  Karimabibi  v. Abderehman  Sayad Banu(2)]. Counsel for Mundhra,  therefore, argued  that it was open to the appellant to  have  executed the  decree  and realised the purchase  money  from  Mundhra instead of resorting to the remedy of rescission.  Order 21, rule 30 provides for execution of a decree for money.   That rule can possibly have no application to the execution of  a decree for specific performance, firstly for the reason that a  specific  mode  for execution of a  decree  for  specific performance  is provided by Order 21, Rule 32 and  secondly, because no decree for money is passed in a suit for specific performance.  Order 21, Rule 32 provides as follows :-               "(1) Where the party against whom a decree for               the  specific performance of a  contract,  ’or

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             for restitution of conjugal rights, or for  an               injunction,  has  been  passed,  has  had   an               opportunity of obeying the decree and has (1) A.I.R. 1932 Calcutta 579. (2) A.I.R. 1923 Bombay ;6. 708               wilfully  & Red to obey it, the decree may  be               enforced   in  the  case  of  a   decree   for               restitution   of   conjugal  rights   by   the               attachment of his property or, in the case  of               a  decree  for the specific performance  of  a               contract or for an injunction by his detention               in  the civil prison, or by the attachment  of               his property or by both.               (2) Where the party against whom a decree  for               specific performance or for an injunction  has               been  passed is a corporation, the decree  may               be enforced by the attachment of the  property               of  the corporation or, with the leave of  the               Court, by the detention in the civil prison of               the  directors  or  other  principal  officers               thereof, or by both attachment and detention.               (3) Where any attachment under sub-rule (1) or               sub-rule  (2)  has remained in force  for  one               year,  if the judgment-debtor has  not  obeyed               the  decree and the decree-holder has  applied               to  have  the  attached  property  sold,  such               property may be sold; and out of the proceeds               the court may award to the decree-holder  such               compensation  as it thinks fit, and shall  pay               the balance (if any) to the judgment-debtor on               his application.               (4)  Where the judgment-debtor has obeyed  the               decree  and  paid all costs of  executing  the               same  which he is bound to pay, or  where,  at               the  end  of  one year from the  date  of  the                             attachment, no application to have the  property               sold  has  been  made, or  if  made  has  been               refused, the attachment shall cease.               (5)   Where   a  decree   for   the   specific               performance of a contract or for an injunction               has not been obeyed, the Court may, in lieu of               or in addition to all or any, of the processes               aforesaid, direct that the act required to be               done may be done so far as practicable by  the               decree-holder  or some other person  appointed               by  the  Court, at the cost of  the  judgment-               debtor,  and  upon  the  act  being  done  the               expenses  incurred may be ascertained in  such               manner  as  the Court may direct  and  may  be               recovered  as  if they were  included  in  the               decree." The execution of a decree for specific performance can  only be in the manner prescribed by this rule sub-rule (1) of the rule  says that if a decree for specific performance is  not obeyed, the decree is to be enforced by the detention of the party in default in the civil prison or by attachment of his property  or by both.  The detention in the civil prison  of the  party who failed to obey the decree and the  attachment of his property are simply the means 709 to  compel  him to obey the decree.  That is made  clear  by Subrule  (3)  which  says that if  the  judgment-debtor  has failed  to obey the decree when the attachment has  remained

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in force for one year the property attached may be, sold and out  of the proceeds the decree-holder may be  awarded  such compensation  as the Court thinks fit.  Sub-rule  (5)  which provides  that the Court may direct the act required  to  be done  may be done by the decree-holder or some other  person appointed  by the craft can only refer to an act other  than an  act  of  payment of money.  We do  not  think  that  the appellant could have executed the- decree against Mundhra as a  money  decree and realised the purchase money  from  him. Therefore,  it  Mundhra refused to pay the  purchase  money, there  was  nothing  which  prevented  the  appellant   from applying for rescission of the decree. It was then contended that the attachments of the decree  in suit  No. 600 of 1961 by the creditors of Mundhra  prevented him  from tendering the purchase money to the appellant  and take  delivery of the shares as the  attachments  prevented him from obtaining satisfaction of the decree by paying  the purchase  money  and obtaining delivery of  the  shares.  In other  words,  the  contention  was  that  because  of   the attachments  Mundhra could not have paid the purchase  money to the appellant as that would have been in contravention of the  orders  of the Court attaching the decree.  We  do  not think that there is any substance in this contention. If the creditors  of  Mundhra  attached  the  decree  and  he   was prevented   from   tendering  the  money  because   of   the attachment, he has only to blame himself. The only  question with  which  the Court is concerned is whether  Mundhra  has disabled himself from performing his part of the  obligation under the decree. The inability to pay off the creditors was the   proximate   cause   of   the   attachments   and   the responsibility  for the same was that of Mundhra.  The  fact that the attachments prevented him from performing his  part of the obligation under the decree or obtaining satisfaction thereof would not make him any the less a defaulter, so  far as  the performance of his part of the obligation under  the decree  is  concerned.  Nor is there any  substance  in  the contention  of  counsel for Mundhra that the  attachment  by Bank  Hoffman of the 51 per cent shares under the  order  of the  District  Judge  of Delhi made it  impossible  for  the appellant   to  deliver  the  shares  to  Mundhra,  as   the attachment order directed that the 51 per cent shares should be  produced before the Calcutta High Court for delivery  to Mundra against payment of the consideration mentioned in the decree in suit No. 600 of 1961. We,  therefore, allow the appeal and set aside the  judgment under  appeal  and order the rescission of  the  decree  for specific  performance  passed  in suit No. 600 of  1961.  We direct Shri K. B. Bose, Barrister, Member, Bar Library Club, Calcutta High 17-L1031SupCI/72 710 Court,  the receiver appointed in suit No. 2005 of 1965  and who  was  appointed  as  receiver  of  the  shares  ’by  the proceedings dated July 14, 1969, of Masud J. in suit No. 600 of  1961, to produce the 2,295 shares before this Court  and give  custody  of the same to the Registrar of  this  Court. The Registrar will hand them over to the appellant. The  Receiver has informed this Court that the  remuneration the shares in this Court in pursuance of this judgment. We allow the appeal with costs.                            ORDER In modification of our earlier order dated March 9, 1972  we now  direct  the  Receiver  to deliver  the  shares  to  the Registrar  of the Calcutta High Court on the  original  side within 10 days from this date.  The Registrar will hand-over

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the shares to Mr. B. M. Bagaria, a Solicitor of the Calcutta High Court, on behalf of Hungerford Investment Trust Ltd. (The Receiver has informed this Court that the  remuneration (due  to him has not yet been paid.  The Receiver  may  move the  (Calcutta  High  Court for  necessary  orders  in  this connection. In  modification  of our earlier order dated March  9,  1972 regarding  costs’ we direct that in Civil Appeal No. 488  of 1971 the costs will be paid by the contesting defendants, V.P.S. 711