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PETITIONER: SANDHYA RANI SARKAR

       Vs.

RESPONDENT: SUDHA RANI DEBI AND ORS.

DATE OF JUDGMENT14/02/1978

BENCH: DESAI, D.A. BENCH: DESAI, D.A. BEG, M. HAMEEDULLAH (CJ)

CITATION:  1978 AIR  537            1978 SCR  (2) 839  1978 SCC  (2) 116

ACT: Constitution  of India, 1950, Article  136--Interference  by Supreme Court, when condonation of delay was ordered by  the Court,   exercising  its  discretionary  powers   and   when sufficient  cause has been shown, propriety--Limitation  Act (36 of 1963), 1963, S. 5. Civil   Procedure   Code,   (Act   5   of   1908),   Section 2(2)--Decree--Preliminary  decree--Decree passed in  a  suit for  specific performance of contract of sale  of  immovable property  calling upon the purchaser to deposit the  balance of  consideration within the time stipulated in decree  with superadded condition that in the event of default, the  suit would be dismissed is not a preliminary decree. Limitation  Act  (36  of 1963),  Section  5--Condonation  of delay--Amendment  of decree--Decree in a suit  for  specific performance  of contract for the sale of immovable  property calling   upon   the  purchaser  to   deposit   balance   of consideration  within the time stipulated  in  decree--order extending time to deposit the balance of consideration would not result in amending the decree. Specific  Relief  Act  (47  of  1963),  Section  16(b)   and (c)--Specific  performance of contract--Decree for  specific performance refused.

HEADNOTE: A contract for Sale of premises No. 88-A Rash Behari Avenue, Calcutta was entered into between the appellant and deceased Smt.   Paribala Das on 8-2-1956 for a consideration  of  Rs. 46,000/-.   The  agreement for sale Ex.I, recites  that  Rs. 1001/-  were  paid  as earnest money  and  subsequently  the defendant  vendor received a further sum of Rs. 2000/-  from the  plaintiff intending purchaser.  Parties had  agreed  to complete  the  transaction  by the end of  April  ’56.   The appellant  was put in actual possession of the 1st  and  2nd floors  of  the  premises by the  defendant  vendor  in  her anxiety  to  complete  her part of  the  contract,  but  the appellant was seeking time on some pretext or the other  and ultimately  filed  a suit for specific performance  on  28th January   1957,  alleging  non-performance  by  the   vendor defendant.  The trial Court decreed the suit on 30th  April, 1962,  styling  it  as preliminary  decree.   The  defendant vendor was directed to execute and register the deed of sale

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in  favour of the plaintiff on receipt of the amount  stated in  the  order  within 30 days of  date  failing  which  the plaintiff appellant was directed to file in Court, within 15 days  after the expiry of 30 days, the draft  of  conveyance with stamp therefor.  The decree was drawn up on  15-5-1962. The  appellant did not comply with the terms of  the  decree but  sought  some directions from the  Court  regarding  the excess  land and a Commissioner was appointed on  14-5-1964. On  26-8-65, the Court directed the plaintiff  appellant  to deposit the amount in Court by 22-9-1965; but the  appellant filed a revision application before the High Court which was dismissed on 8-1-1968.  The High Court granted 3 weeks’ time for  depositing the amount and again further time till  8-2- 1968.   The  appellant  deposited the money  on  6-2-68  and thereupon the vendor defendant No. 1 made an application  on 25-3-1968  requesting the Court to draw the final decree  so as  to enable her to prefer first appeal.  ibis  application was rejected by the Court on 27th March 1968, and thereafter she  preferred First Appeal to the High Court  on  11-4-1968 and  filed an application for condonation of delay, if  any, on 8- 7 . The   High  Court  held  that  the  appeal  was  barred   by limitation; but on the facts of the case condoned the  delay as  sufficient  cause having been shown,  and  examined  the appeal on merits and Allowed the appeal. 840 Dismissing  the  plaintiff’s appeal, by special  leave,  the Court HELD  (1) ’(a) Discretion is conferred on the  Court  before which an application for condonation of delay is made and if the   Court  after  keeping  in  view  relevant   principles exercises its discretion granting relief unless it is  shown to be manifestly unjust or perverse the Supreme Court  would be loathe to interfere with it.  [847 C-D] (b) It is undoubtedly true that in dealing with the question of  condoning the delay under section 5, the  party  seeking relief has to satisfy the Court that he had sufficient cause for  not  preferring the appeal or  making  the  application within  the  prescribed  time  and  this  has  always   been understood  to  mean that the explanation has to  cover  the whole  period of delay.  However, it is not possible to  lay down precisely as to what facts or matters would  constitute "sufficient  cause" under Section 5. But those words  should be liberally construed so as to advance substantial  justice when no negligence or any inaction or want of bona fides  is imputable  to  a party i.e. the delay in  filing  an  appeal should not have been for reasons which indicate the  party’s negligence in not taking necessary steps which he would have or  should have taken.  What would be such  necessary  steps ;will  again depend upon the circumstances of  a  particular case. [847 A-C] Sitaram Ramacharan v. M. N. Nagarashana, [1960] 1 SCR 875  @ 889  =A.I.R. 1960 SC 260 @ pp. 265-66; State of West  Bengal v. Administrator, Howrah Municipality, [1972] 2 S.C.R. 874 = A.I.R. 1972 S.C. 749, relied on. (c)   In  the  instant  case,  the  High  Court  took   into consideration  the fact that no affidavit in  opposition  to the application for condoning delay was filed even though  a copy of the application was served on the respondent  before the  High  Court  and  accordingly  it  was  concluded  that averments in the application remained unrebutted.  The  High Court  also took into consideration the relevant  fact  that plaintiff  sought  extension of time to deposit  balance  of consideration  from  time  to time  and  this  is  important because  if the deposit was %not made the suit for  specific

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performance  of contract was liable to be dismissed  as  per the  decree of the trial court as well as the order  of  the High  Court  in earlier  revision  application.   The,-,High Court  recapitulated  the events since the judgment  of  the trial  Court  and concluded that it was satisfied  that  the appellant before it had sufficient cause for not  preferring the  appeal  within  the period as  prescribed  in  law  and accordingly  condoned  the delay in preferring  the  appeal. These   are   vital  and  relevant   considerations,   while considering the prayer for condoning the delay in preferring the  appeal  and  thus  no  case  has  been  made  out   for interfering with the same. [847 E-G] (d)  To  contend that assuming that there was delay  on  the part of the plaintiff in performing her part of the contract once she was put in possession of ’a substantial portion  of the  property, which was intended to be purchased  a  decree for specific performance should not be refused is not always correct and again it depends on the facts of each case. [850 G-H] Williams  v.  Greatrex. [1956] All.  E.R.  705  quoted  with approval. 2.  (a) In a suit for specific performance of  contract  for sale  of  immovable  property  it  is  incumbent  upon   the Plaintiff to affirmatively establish that all throughout  he or  she, as the case; may be, was willing to perform his  or her  part of the contract, and that the failure on the  part of  the plaintiff to perform the contract or willingness  to perform her part of the contract may in an appropriate  case disentitle  her  to relief, one such situation  being  where there  is inordinate delay on the part of the  plaintiff  to perform his or her part of the contract.  [849 B-C] (b)  The question whether relief of specific performance  of the, contract for the purchase of immovable property  should be   granted  or  not  always  depends  on  the  facts   and circumstances  of  each case and the Court would  not  grant such a relief if it gives the plaintiff an unfair  advantage over the defendant. [850 A-B] 841 (c)  In the instant case, by the terms of the  contract  the vendor  had  to  put  the purchaser  in  possession  of  the property   when  conveyance  is  executed  and  balance   of consideration is paid land that was to be done by the end of April 1956.  Even though the plaintiff purchaser had  failed to  perform any portion of her part of the contract  by  the end  of April 1956, the vendor put the plaintiff  in  actual possession of the first and second floors of the premises to be  sold  on  28th  April 1956,  and  the  plaintiff  is  in possession  of the same till today that is after a lapse  of more  than 20 years.  On the other hand he  deposited  after struggle and procrastination the balance of consideration on 6th February 1968 that is nearly 12 years after the date  of agreement.  The plaintiff thus enjoyed actual possession  of the  property  from  April 1956 to February  1968  when  she parted with consideration without paying a farthing for  the use  and occupation of the premises which, on  a  reasonable construction  of  the contract, she was not entitled  to  at all,  till she parted with the full consideration  and  took the conveyance.  The stages within which the contract was to be  completed were actually demarcated, and set out  in  the contract  itself  and  by  the  land  of  April,  1956,  the transaction was to be completed.  In her anxiety to see that the transaction was completed, the defendant vendor put  the plaintiff  in  possession of a substantial  portion  of  the property  even when the plaintiff had not paid a major  part of  the consideration.  The procrastination on the  part  of

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the  plaintiff put the defendant in such  a  disadvantageous position  that she was forced to sell the adjacent  property to raise enough money to pay off the dues in respect of  the property which the plaintiff desired to purchase. [849  D-H, 850 E-F] (d) The High Court was justified in refusing the decree  for specific  performance  of the contract, on the  ground  that while the defendant did everything within her power to  meet the  requests  made  by the plaintiff,  the  latter  avoided performing  her part of the contract under one or the  other pretext.[850 F-G] (e) The contract was to be completed by April 1956.  It  was not  completed  till 1957, even though the  defendant  after satisfying  the  queries of the  plaintiff  fixed  different dates  on different occasions calling upon the plaintiff  to complete the transaction.  Thereafter the plaintiff filed  a suit.   The  suit  was  decreed on  30th  April  1962.   The Plaintiff  by  that decree was called upon  to  deposit  the balance  of consideration within 30 days of the date of  the decree.   She did not deposit the amount by  the  stipulated date.   She  asked  for  extension of  time.   In  fact,  it prominently  appeared that the plaintiff put off  performing her part of the contract presumably because she had not  the necessary wherewithals to take the conveyance when she could be  obliged to pay the balance of consideration  and  having obtained  possession  hung  on to  it  without  meeting  her obligation.  If in this background the High Court interfered within  the  decree of the trial Court, there  was  ’nothing objectionable in it. [853 C-G] Jitendra Nath Roy v. Smt.  Maheshwari Bose, A.I.R. 1965 Cal. 45, Bank of India Ltd. v. Jamsetji A. H. Chinoy and Anr., 77 IA, 76 discussed. 3.  To  assert that the decree made in a suit  for  specific performance  of  contract  for sale  of  immovable  property calling  upon  the  purchasers to  deposit  the  balance  of consideration within the time stipulated in the decree  with super added condition that in the event of default the  suit would stand dismissed, is a preliminary decree, is to ignore the relevant provisions of the Code of Civil Procedure which require  in  certain  types of  suits  to  pass  preliminary decree.   Such  a suit when contested, each party  would  be accusing   the  opposite  party  of  committing  breach   of contract.   The  right to ask for  specific  performance  of contract would be adjudicated upon and in fact in this  case it was adjudicated upon.  The trial court did call upon  the defendant   to   execute  the  conveyance  on   receipt   of consideration.   Such  a decree could never be  said  to  be preliminary decree. [841 E-G]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1389  of 1976. Appeal by Special Leave from the Judgment and Order dated 6- 6-74  of  the Calcutta High Court in  Appeal  from  Original Decree No. 1056 of 1968. 842 Purushottam Chatterjee and Rathin Das, for the Appellant. D. M. Mukherjee and N. R. Chowdhury, for the Respondents. The Judgment of the Court was delivered by DESAI  J.-This  appeal  by special  leave  by  the  original plaintiff questions the correctness of the decree dismissing her  suit for specific performance of contract for ’sale  of premises  No.  88-A, Rash Behari Avenue,  Calcutta,  entered

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into  between  her and deceased Smt.  Paribala  Das  on  8th February  1956  for a consideration of  Rs.  46,000/-.   The agreement of sale, Ext. 1, recites that Rs. 1001/- were paid as  earnest  money  and subsequently  the  defendant  vendor received  a  further sum of Rs. 2,000/- from  the  plaintiff intending  purchaser.  Various terms of agreement  would  be referred  to in the course of this judgment.  The  plaintiff filed the suit for a decree for ’specific performance of the contract alleging that even though she ’is ready and willing to perform her part of the contract the defendant No. 1  has not  completed the transaction and, therefore, a decree  for specific  performance  should  be  made  in  favour  of  the plaintiff.  In this suit she impleaded vendor defendant  No. I  and her son Hrishikesh Das as defendant No. 2.  The  suit was resisted by the defendants, inter alia, contending  that the plaintiff was not ready and willing to perform her  part of the contract more particularly saying that the vendor was in  urgent need of money to pay off the mortgage  debt  and, therefore,  she  had  entered  into  contract  for  sale  of property  and that time was of the essence of  the  contract and  yet the plaintiff under one or the other false  pretext put  off  performing her part of the contract  so  that  the vendor  was  compelled  to sell  another  valuable  property bearing  No. 86-A, Rash Behari Avenue, Calcutta.  The  trial Court after an elaborate examination of the evidence decreed the  suit on 30th April 1962 directing "defendant No.  1  to execute  and  register  a  deed of sale  in  favour  of  the plaintiff  in respect of the premises No. 88A,  Rash  Behari Avenue, Calcutta, on receipt of the balance of consideration of  Rs. 42,999 and a further sum of Rs. 500 if there  be  an excess  land  of  1 cottah 88 sq. ft.  beyond  2  cottahs  2 chittaks  38  sq.  feet or any money  proportionate  to  the extent of the excess land, amicably within 30 days, of date, failing  which  the  plaintiff  do  deposit  in  Court   the consideration thus due, together with the cost of  execution and registration and the draft of the conveyance with  stamp for  the conveyance within 15 days of the expiry of that  30 days  for  having  the conveyance  executed  and  registered through  Court.   In  case of default on  the  part  of  the plaintiff  in complying with the above order the suit  shall stand  dismissed with costs and that the sum of Rs. . . .  . be  paid by the .... to the .... on account of the costs  of this  suit, with interest thereon at the rate  of......  per cent per annum from this date to date of realisation".   The decree  in  terms  of  the  operative  portion   hereinabove mentioned was drawn up on 16th May 1962.  Since the date  of the  decree certain events occurred which would  be  noticed while  examining  the  first contention  on  behalf  of  the appellant  herein.   Suffice  it  to  say  that  the  vendor preferred first appeal to the High Court of Calcutta on 11th April 1968.  When the appeal appeared on the cause list  and was  taken up for hearing, an application under s. 5 of  the Limitation Act supported by an affidavit was 843 filed  on 8th August 1972 requesting the Court that in  case the appeal is found to be barred by limitation the appellant before  the High Court was prevented by a  sufficient  cause from preferring the appeal in time and, therefore, the delay should  be  condoned.  The, application for  condonation  of delay and the appeal were heard together and the High  Court while holding that the appeal was barred by limitation,  was further  of the opinion that the vendor appellant before  it was  prevented  by a sufficient cause  from  preferring  the appeal  in  time, and accordingly condoned  the  delay.   On merits, the High Court held that the vendor was always ready

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and  willing  to perform her part of the  contract  but  the plaintiff purchaser under one pretext or the other  deferred performing  her part of the contract beyond reasonable  time and  was, therefore, not entitled to a decree  for  specific performance.  Accordingly, the High Court allowed the appeal and  dismissed the plaintiff purchaser’s suit.   Hence  this appeal by the plaintiff purchaser.   The first contention raised on behalf of the appellant  is that  the  appeal  before the High Court  preferred  by  the respondent  vendor was barred by limitation and the  vendor- had  failed  to make out any cause much  less  a  sufficient cause, preventing her from preferring the appeal in time and the  High Court was in error in exercising the _  discretion condoning  the delay and admitting the appeal to  file.   On behalf  of the vendor respondent it was submitted  that  the appeal before the High Court was in time and at any rate the discretion  exercised by the High Court could not be  styled as  perverse  or  unreasonable and  this  Court  should  not interfere  with the same.  Simultaneously, it was  submitted that  the material on record would unquestionably  establish that the appellant before the High Court was prevented by  a sufficient cause from preferring the appeal in time. Some  relevant  and  material  dates  may  now  be  noticed. Agreement  of ’sale, Ext.  I on which suit was  founded  was executed   on   8th  February  1956.   Suit   for   specific performance of this agreement was instituted on 28th January 1957.   It was decreed on 30th April 1962.  The  decree  was drawn up on 25th May 1962, the first appeal was preferred on 11th  April  1968.   An  application  under  s.  5  of   the Limitation  Act supported by an affidavit was  presented  on 8th  August  1972.  There are certain events  that  occurred after  the decree was drawn up on 25th May 1962  and  before 11th  April 1968 when appeal was preferred by the vendor  of which  brief note would be necessary.  The material  portion of the decree has been set out in extenso above and at first glance  it would appear that the purchaser had to pay the  I amount  therein mentioned to the vendor within 30 days  from the  date  of the decree and the vendor had to  execute  the deed  of  conveyance  failing which the  amount  was  to  be deposited in the Court within 15 days from the expiry of the first  mentioned 30 days and submit the draft of  conveyance to the Court for getting it executed and registered  through the  Court.   The  decree  further  directed  that  if   the purchaser failed to deposit the amount within the stipulated time the suit would stand dismissed.  The vendor interpreted the  decree  to  be a preliminary decree,  and  awaited  the purchaser  to perform her part of the decree  by  depositing the  amount in the Court.  The purchaser failed  to  deposit the amount within the 844 stipulated  time  but  on 14th June  1962  she  sought  some directions from the Court for making the deposit.  There was some dispute between the parties about the extra land  which was  to  be sold and its price.  An order was  made  by  the trial  Court  on  14th  May  1964  directing  the  plaintiff purchaser to take steps for appointment of a Commissioner to determine  the area of extra land and the price to  be  paid for such land and she was required to take steps by 22nd May 1965.   A  further direction was given on 26th  August  1965 directing the plaintiff to deposit Rs. 42999 plus Rs. 500 by 22nd  September  1965  pursuant  to  the  maps  and   report submitted   by   the  Commissioner.    Plaintiff   purchaser preferred  Civil  Revision  Application  No.  3195  of  1965 challenging the report of the Commissioner and the direction of the Court.  The Civil Revision Application was  dismissed

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by  the  High Court on 8th January 1968 and the  High  Court simultaneously extended the time for depositing the  balance of  consideration by three weeks from the date of the  order making it conditional that in the event of default the  suit would stand dismissed.  This order was modified by the  High Court  on 2nd February 1968 extending the time to  make  the deposit  till  8th  February  1968  retaining  the  original condition.    The   purchaser  deposited  the   balance   of consideration  on  6th February 1968  whereupon  the  vendor defendant  No.  1  made an application on  25th  March  1968 requesting  the  Court  to draw the final decree  so  as  to enable  her  to prefer first appeal.  This  application  was rejected by the Court on 27th March 1968 and thereafter  the appeal  was preferred to the High Court on 11th April  1968. As  stated earlier, an application requesting the  Court  to condone the delay in preferring the appeal was filed on  8th August 1972. The  appeal  against  the  decree  dated  30th  April   1962 preferred  on  11th  April  1968  was  obviously  barred  by limitation.   To assert that the decree made in a  suit  for specific  performance  of  contract for  sale  of  immovable property  calling upon the purchaser to deposit the  balance of  consideration within the time stipulated in  the  decree with super added condition that in the event of default  the suit  would stand dismissed, is a preliminary decree, is  to ignore.  the  relevant  provisions  of  the  Code  of  Civil Procedure  which require in certain types of suits  to  pass preliminary decree.  Such a suit when contested, each  party would be accusing the opposite party of committing breach of contract.   The  right to ask for  specific  performance  of contract would be adjudicated upon and in fact in this  case it was adjudicated upon.  The trial court did call upon  the defendant   to   execute  the  conveyance  on   receipt   of consideration.   Such  a decree could never be  said  to  be preliminary decree.  If defendant vendor was contesting  the right of the plaintiff to ask for ’specific performance  and that  was concluded adverse to her and if the vendor  wanted to  challenge  the  finding, it was incumbent  upon  her  to prefer an appeal within the prescribed period of limitation. Similarly,  it  is  also  not  possible  to  entertain   the contention that the orders extending the time to deposit the balance of consideration would result in amending the decree and as the appeal is preferred after such last amendment the appeal  would  be  in  time.  Reliance  was  placed  on  Sm. Soudamini Das v. Nabatak Mia Bhuiya and others,(1) but that (1) A.I.R. 1931 Calcutta 578. 845 decision  would  not assist the respondent and in  fact  the High Court treated that fact as sufficient for extension  of time  under  s. 5. The decision in Jagat Dhish  Bhargava  v. Jawarhar Lal Bhargava and others ( 1 ) proceeds on the basis that litigant deserves- to be protected against the  default committed  or negligence shown by the Court or its  officers in the discharge of their duties.  In that case litigant had applied  for  certified  copy  of  the  decree  ’soon  after judgment I was pronounced but as the certified copy was  not given, appeal was filed without producing certified copy  of the  decree  and it was contended that  under  the  relevant rules  appeal  was  not competent.  Such is  not  the  case. Present  respondent,  if she wanted to question  the  decree directing her to execute conveyance, ought to have preferred appeal  against the decree dated 30th April 1962.  That  has not  been  done and obviously the appeal preferred  on  11th April 1968 was barred by limitation. The  High Court rightly held that the appeal was  barred  by

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limitation, and then proceeded to examine the submission  of the appellant before it that the appellant was prevented  by a  sufficient cause from preferring the appeal in  time  and the  delay  should  be  condoned.   The  High  Court  having examined  all the relevant materials placed before  it,  has exercised  its  discretion  in favour of  the  appellant  by condoning  the delay and admitting the appeal to  file.   In the  facts and circumstances of this case, could it be  said that  the  High Court committed an error in  exercising  its discretion in favour of the appellant before it ? At  the  outset  it was urged that the cause  shown  by  the respondent which prevented her from preferring the appeal in time is not the one accepted by the High Court, but the High Court  has made out entirely a different ground not  pleaded for  condoning delay.. We have gone through the  application filed  by  the appellant before the High Court  praying  for condoning delay.  It was asserted that the appeal, is within time and alternatively it was prayed that delay, if any,  be condoned.   The  High  Court  examined  both  limbs  of  the contention.   We see no contradiction in what is  stated  in the  application  and what the High Court found as  a  fact. The  contention is that decree was a preliminary decree  and on  deposit it became a final decree.  Alternatively it  was contended that various events that occurred since the decree did create an impression in the mind of the vendor appellant that  till the balance of purchase price was  deposited  the right  to  file  an appeal did not arise and  that  a  final decree  would be made.  That was pleaded and that  has  been accepted.  Therefore, there is no merit in this contention. Very  serious exception is taken to one observation  of  the High  Court that an application for condoning the delay  was submitted  simultaneously with filing the appeal  though  in fact  it  was  done nearly four years after  filing  of  the appeal, and that the office of the High Court was misled  by certain  averments  made  in the Memo of  Appeal  which  the Registry  prima  facie  accepted  and  numbered  the  appeal without  insisting  upon an application for  condonation  of delay  or bringing that fact to the notice of the  Court  on whose cause list the appeal was listed for admission.   Now, it is undoubtedly true that the application (1)  A.I.R. 1961 S.C. 832. 846 for  condoning  the delay was made on 8th  August  1972  and there is some factual error in-stating in the judgment  that the  application was simultaneously filed with  the  appeal. But this aspect is not very material as the delay had to  be explained  till the date of filing of the appeal and not  at any rate after filing of the appeal or till the  application for  condoning the delay was made.  It is true that  in  the Memo  of  Appeal  it  has been stated  that  the  appeal  is directed  against the judgment and decree dated  30th  April 1962 as amended and/or modified by orders dated 8th  January 1968  and  2nd February 1968.  The averments  are  factually correct and, therefore, it could not be said that they  were made  with  a view to misleading the Registry  of  the  High Court.   By the decree dated 30th April 1962  purchaser  was directed to deposit the balance of consideration within  the stipulated time and at the request of the purchaser the time was  first extended by the trial Court and then by the  High Court in Civil Revision Application No. 3195 of 1965 on  two different  occasions,  viz.on  8th  January  1968  and   2nd February 1968. Therefore, no exception can be taken to those avertments  which  are factually correct though  the  appeal would  lie  obviously against the decree  dated  30th  April 1962.  It, however, appears that as the appeal was  numbered

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and was even admitted, though the application for  condoning delay  was not made till the appeal was placed on the  cause list and was actually taken up for hearing when an objection was raised that the appeal was barred by limitation.  It  is obviously  at that stage that the application for  condoning delay was made. The  appellant  before the High Court did  honestly  believe that the decree was a preliminary decree and only after  the deposit  as  directed  therein was  made  by  the  plaintiff purchaser  that a final decree would be made.   The  learned trial  judge  has also styled it as  a  preliminary  decree. Subsequent  steps  which have been listed  in  detail  above clearly  show that the plaintiff purchaser did  not  deposit the  amount  and in fact got a  Commissioner  appointed  for determining  the area of excess land and when the report  of the  Commissioner  was  accepted by the  trial  Court,  that decision  was questioned by the plaintiff in Civil  Revision No.  3195/65.   If  since the decree  the  plaintiff  sought extension  of time for depositing the amount which  was  the obligation  imposed by the decree the performance  of  which will make the decree executable against judgment-debtor, the judgment-debtor  may honestly, though  erroneously,  believe that  there  was no decree against which  she  could  appeal unless the deposit was made.  The decree also provided  that failure to deposit would entail dismissal of the suit.   The defendant may honestly believe that if the consideration  is not  deposited the suit would stand dismissed and  it  would not  be  necessary  to  prefer an appeal  at  all.   Such  a contention may not stand the scrutiny of a law Court but the question  to which we must address ourselves is whether  the defendant vendor on account of this peculiar situation could be  said  to  be  prevented  by  a  sufficient  cause   from preferring  an appeal in time ?  Soon after the deposit  was made she first requested the Court to draw up a final decree which request was turned down and she immediately  preferred the appeal.  These are relevant considerations while examin- ing  a  request  for condoning the delay  in  preferring  an appeal and on 847 these relevant considerations if the High Court is satisfied simultaneously keeping in view the conduct of the, Plaintiff since the date of the decree a case for condoning the  delay is  made  out, and no exception can be taken to it.   It  is undoubtedly  true  that  in dealing  with  the  question  of condoning  the  delay under s. 5 of the Limitation  Act  the party  seeking relief has to satisfy the Court that  he  had sufficient cause for not preferring the appeal or making the application within the, prescribed time and this has  always been  understood to mean that the explanation has  to  cover the whole period of delay, vide Sitaram Rancharan etc. v. M. N.  Nagarshana & Others(1).  However, it is not possible  to lay  down  precisely  as  to what  facts  or  matters  would constitute  ’sufficient cause’ under s. 5 of the  Limitation Act.  But those words should be liberally construed so as to advance  substantial,  justice  when no  negligence  or  any inaction  or  want of bona fides is imputable  to  a  party, i.e.,  the  delay in filing an appeal should not  have  been for.  reasons which indicate the party’s negligence  in  not taking  necessary steps which he would have or  should  have taken.  What would be such necessary steps will again depend upon. the circumstances of a particular case (vide State  of West  Bengal  v.  Administrator,  Howrah  Municipality   and others(2).   Discretion  is conferred on  the  Court  before which an application for condoning delay is made and if  the Court  after keeping in view relevant  principles  exercises

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its  discretion  granting relief unless it is  shown  to  be manifestly  unjust or perverse, this Court would be  loathe, to interfere with it. The  High  Court took into consideration the  fact  that  no affidavit  in  opposition to the application  for  condoning delay  was filed even thorough copy of the  application  was served  on the present appellant who was  respondent  before the  High  Court  and  accordingly  it  was  concluded  that averments in the application remained unrebutted.  The  High Court  also took into consideration the relevant  fact  that plaintiff  sought  extension of time to deposit  balance  of consideration  from.  time  to time and  this  is  important because  if the deposit was not made the suit was likely  to be dismissed as per the decree of the trial Court as well as the  order of the High Court in Civil  Revision  Application No.  3195 of 1965.  The High Court recapitulated the  events since the judgment of the trial Court and concluded that  it was  satisfied that the appellant before it  had  sufficient cause  for not preferring the- appeal within the  period  as prescribed  in  law and accordingly condoned  the  delay  in preferring  the appeal.  In our opinion these are vital  and relevant  considerations  was  considering  the  prayer  for condoning the delay in preferring the appeal and no case  is made out for interfering with the same. And  now  to  the merits of the contentions  raised  in  the appeal.  Plaintiff’s suit for specific performance had  been decreed  by  the  trial Court and on appeal  by  the  vendor defendant,  the suit has been dismissed.  Plaintiff is  here before us praying for a decree for specific (1) [1970] 1 S.C.R. 875 at 889. 848 performance  of the contract.  Let it be recalled  that  the contract  of which plaintiff seeks performance is dated  8th February  1956  and the parties had agreed to  complete  the transaction by the end of April 1956.  The contract provided that  within  a  week from the date of  the  agreement  the, vendor shall give to the purchaser for proper inspection all original  documents  of  title and  other  papers  connected therewith and necessary information and the purchaser  shall within  a  period  of  3  one  and  half  months  from  such inspection of the documents and other papers and receipt  of other  particulars and information complete her searches  in respect of the property and the vendor’s title being  proved good and marketable So the satisfaction of the purchaser the deed  of conveyance will be executed and  registered  within fifteen  days  thereof  in favour of the  purchaser  or  her nominee  or  nominees at the cost of the purchaser  or  such nominee or nominees.  The vendor also, agreed and  undertook to  deliver to the purchaser vacant and peaceful  possession of the property to be sold with the execution of the deed of conveyance.   Keeping  in view these  important  terms,  Mr. Purshottam  Chatterjee contended that the High Court was  in error  in  holding  that the vendor complied  with  all  the requests  of  the purchaser and it was  submitted  that  the vendor  had  committed  a  default  in  complying  with  the requests.   It  was submitted that the  plaintiff  purchaser wanted  to inspect title deeds as evidenced by Ext. 2  dated 17th  February 1956 to which a reply was sent on  behalf  of the  defendant  vendor that these documents  were  filed  in title suit No. 10 of 1956 and were lying in the Third  Court of  the Sub-Judge at Alipore and that it was as late as  9th August 1956 that the defendant vendor asked the purchaser to inspect  the documents in the Court and also failed-  either to  produce  the original documents or certified  copies  as undertaken  in the contract for sale of property.   It  was,

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therefore,  contended that the vendor committed a breach  of the  terms of the agreement when she failed to  produce  the title  deeds  for  inspection of the  purchaser  within  the prescribed time schedule.  It appears that the contention in the  form it was canvassed before us was not  raised  before the  High Court.  Nor does it appear to have been  contended before the trial Court.  However, it must be stated that  in a slightly different form this contention was pressed before the  trial  Court  in support of  the  submission  that  the plaintiff  was entitled as per terms of the contract to  one foot  of land to the north of the property to  be  purchased and   the  trial  Court  which  bad  in  fact  decreed   the plaintiff’s  suit,  had  on  this  point  held  against  the plaintiff.  Mr. Mukherjee for the respondent submitted  that title  was approved by the plaintiff by 30th April 1956  and then  she was put in possession of a substantial portion  of the  premises.  At any rate, during the extended period  the title  of the vendor was accepted by the plaintiff  and  the draft  of  conveyance  deed prepared  by  her  attorney  was accepted by the vendor and yet the plaintiff failed to  take conveyance  by the date next fixed for the same  and--raised an  untenable controversy about 1 foot of land to the  north of  the  property  to be sold to her.   Therefore,  even  if vendor  failed  to submit title deeds in time it  loses  all significance.  Save this, the finding of the High Court that the defendant had complied with all the requests made by the plaintiff  to complete the transaction in time could not  be assailed. 849 The  High  Court reversed the decree of  the  trial.   Court holding  that the plaintiff purchaser had under one  pretext or  other put off the taking of the deed of  conveyance  and delayed   performing   her  part  of  the   contract.    The correctness of this finding was seriously assailed on behalf of  the appellant.  It was urged that the High Court  itself has found in this case that time was not, the essence of the contract nor was it made essence of the contract because the date  for performance was extended on number  of  occasions. It  was  urged  that  this  discloses  a  self-contradictory approach  on  the part of the.  High Court when on  the  one hand  it  holds  that time was neither the  essence  of  the contract nor was it made essence of the contract but on  the other  refuses decree for specific performance on  the  only ground that the plaintiff delayed performing her part of the contract.   It is undoubtedly true that the High  Court  has recorded a finding (p. 32) that time was not the essence  of the  contract nor was it made essence of the contract  by  a specific  notice, but it is equally true that the  plaintiff seeks relief for specific performance of contract and it  is incumbent upon the plaintiff to affirmatively establish that all throughout he or she, as the case may be, was willing to perform  his  or  her part of the  contract,  and  that  the failure on the part of the plaintiff to perform the contract or willingness to perform her part of the contract may in an appropriate   case  disentitle  her  to  relief,  one   such situation being where there is inordinate delay on the  part of the plaintiff to, perform his or her-part of the contract and that is how the High Court has approached the matter  in this case.  One, aspect of the case which deserves notice is that by the terms of the contract the vendor had to put  the purchase  in possession of the property when  conveyance  is executed and balance of consideration is paid and, that  was to  be  done  by the end of April  1956.   Even  though  the plaintiff purchaser had failed to perform any portion of her part  of the contract by the end of April 1956,  the  vendor

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put  the  plaintiff in actual possession of  the  first  and second floors of the premises to be sold on 28th April  1956 and  the plaintiff is in possession of the same  till  today that  is after a lapse of more than 20 years.  On the  other hand,  she deposited after struggle and procrastination  the balance of consideration on 6th February 1968 that is nearly 12  years after the date of agreement.  The  plaintiff  thus enjoyed actual possession of the property from April 1956 to February  1968  when she parted with  consideration  without paying a farthing for the use and occupation of the premises which, on a reasonable construction of the contract, she was not  entitled at all, till she parted with the  full  consi- deration  and  took the conveyance.   This  has  undoubtedly weighed with the High Court in coming to the conclusion that the  plaintiff  is  disentitled  to  a  relief  of  specific performance of contract. Mr.  Chatterjee  contended  that delay on the  part  of  the plaintiff would not disentitle her to a decree for  specific performance  unless  it can be shown that time  was  of  the essence of the contract or was made essence of the  contract or   delay  on  the  part  of  the  plaintiff  amounted   to abandonment  of  the contract.  Our attention was  drawn  to Article  466, Halsbury’s Laws of England, III Edition,  Vol. 36, p. 322 where it is observed that delay by a plaintiff in performing  his  part  of  the contract  is  a  bar  to  his enforcing specific performance, pro- 850 vided that (1) time was in equity originally of the  essence of the    contract; or (2) was made so by subsequent notice; or  (3) the delay has been so great as to be evidence of  an abandonment of the contract.  It was then said that in  view of  the finding of the High Court that time was not  of  the essence of the contract or was not so made, the decree could not be refused on the ground of delay.  The question whether relief  of  specific  performance of the  contract  for  the purchase  of  immoveable property should be granted  or  not always  depends on the facts and circumstances of each  case and the Court would not grant such a relief if it gives  the plaintiff  an unfair advantage over the, defendant.   A  few relevant facts of the case would unmistakably show that if a decree  for specific performance in this case is granted  it would  give  the  plaintiff an  unfair  advantage  over  the defendant.   The defendant was obliged to sell the  property because   it  was  mortgaged  with  Hindustan   Co-operative ’Insurance Society Ltd., and the mortgagee Company had filed Title Suit No. 10/656 for realisation of mortgage dues.  The vendor  then  had thus a compelling necessity to  sell  the, property  to  save the property from being sold at  a  Court auction.   It  is  in  this  background  that  we  have   to appreciate the conduct of the plaintiff.  The stages  within which  the  contract  was  to  be  completed  were   clearly demarcated and set out in the contract itself and by the end of  April 1956 the transaction was to be completed.  In  her anxiety  to  see  that the  transaction  was  completed  the defendant  vendor  put  the plaintiff  in  possession  of  a substantial portion of the property even when the  plaintiff had not paid a major part of the consideration.  This  would clearly   evidence   the  anxiety  of   the   defendant   to successfully  complete  the contract within  the  stipulated time.   To repel this submission on the flimsy  ground  that mortgage was not referred to in the     contract for sale is to  ignore the letter on behalf of the defendant dated  25th February  1956 in which it is specifically stated  that  the title  deeds of the property in question were lying  in  the court  of  Sub-Judge  at  Alipore  in  which  Hindustan  Co-

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operative  Insurance  Society  Ltd., had filed  a  suit  for realisation  of mortgage dues.  And the  procrastination  on the  part of the plaintiff put the defendant then in such  a disadvantageous  position  that she was forced to  sell  the adjacent  property  86A, Rash Behari Avenue  to  Hindu  Maha Sabha  to raise enough money to pay off the dues in  respect of the property which the plaintiff desired to purchase.  If in  this background the High Court took  into  consideration the fact that while the defendant did everything within  her power to meet the requests made by the plaintiff, the latter avoided performing her part of the contract under one or the other pretext and, therefore, is disentitled to a decree for specific  performance, no serious exception can be taken  to this finding. Mr.  Chatterjee, however, contended that assuming there  was delay on the part of the plaintiff in performing her part of the   contract,  once  she  was  put  in  possession  of   a substantial portion of the property which was intended to be purchased,  a decree for specific performance could  not  be refused.   In  this connection be invited our  attention  to para 474, Halsbury’s Laws of England, III Edition, Vol.  36, p.  325, where it is observed that delay does not,  however, bar  a  claim to specific performance if the  plaintiff  has been in substantial possession of the benefits 851 under the contract and is merely claiming completion of  the legal  estate.   Reference  was also  made  to  Williams  v. Greatrex.(1)  In that case the delay was of 10 years  before entire period of 10 years neither side gave notice requiring bringing an action for specific performance.  During the the other  to complete the transaction.  In this background  the fact  that the intending purchaser was put in possession  of the   plots  acquired  considerable  importance  and   after considering  the question of laches, a decree  for  specific performance was granted.  But the conclusion was reached  on the facts of that case.  In the case before us the defendant had  on  as many as three different  occasions  invited  the plaintiff  to  complete the transaction.  By Ext.  2H,  17th July   1956  was  fixed  as  the  date  for  execution   and registration  and  by Ext. 2J dated 9th  August  1956,  12th August  1956  was  fixed  as  the  date  for  execution  and registration of the conveyance.  Again by letter dated  27th August 1956, Ext. 2P, the plaintiff was informed that if the transaction was not completed within a week from 26th August 1956,  the  defendant would treat the agreement of  sale  as cancelled,  forfeit the earnest money and claim damages  for wrongful  use  and  occupation of  the  premises.   In  this background it is not possible to accept the submission  that even if the plaintiff was guilty of delay in performing  her part  of  the contract, in view of the fact that she  is  in possession of a substantial portion of the property which is the  subject-matter  of  this appeal, the  delay  should  be overlooked  and a decree for specific performance should  be granted. The   correspondence   that  passed  between   the   parties prominently brought out three points of dispute between  the parties.  The plaintiff claimed sale of one foot of land  to the north of the property involved in dispute.  Reliance was placed  in support of the submission on the map  annexed  to the  agreement.   The map prepared by the  Commissioner  was also  referred to.  It is not necessary to examine  evidence on this point because both the trial Court which decreed the plaintiff’s  suit and the High Court which held against  the plaintiff  have  recorded  a  concurrent  finding  that  the plaintiff  was  not  entitled as part of  the  agreement  to

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purchase one foot of land to the north of the property.   In fact,  it  has  been  held that  this  claim  was  purposely invented by the plaintiff fully knowing that to the north of the  premises  88A,  Rash Behari Avenue there  was  no  land appurtenant to the said premises.  Even if both the maps are compared it is not possible to come to the ,conclusion  that there was any such land which was included in the  agreement of  sale.  If there was no such land which could be sold  to the  plaintiff and yet if the plaintiff persisted in  making this  demand, the High Court and the trial Court  were  both amply justified in coming to the conclusion that this  claim was  invented  with  a  view to putting  off  the  date  for performing her part of the contract.  But in this connection Mr. Chatterjee contended that the plaintiff purchaser wanted demarcation  of  boundary  as per Ext.  2E  and  instead  of agreeing to make arrangement for demarcation. the  defendant contended that, demarcation was aready effected.  By  letter Ext. 2K, the plaintiff denied any such demarcation.  It  was also  urged that there is no document on record which  would show that any joint demarcation of (1)  [1956] All E. R. 705. 852 the  boundary was undertaken and demarcation was  made.   In this  connection,  the  letter  Ext. 2P  on  behalf  of  the defendant clearly shows that demarcation of the boundary was already done.  The dispute about demarcation has hardly  any relevance.  In fact, the dispute is raised by the  plaintiff when  she claims one foot of land to the north of  property. Even  if one relies upon the map annexed to  the  agreement, the  claim is not substantiated.  Both the trial  court  and the High Court have concurrently found that no such land was agreed  to  be  sold.  If the plaintiff  still  persists  in making such a demand she is asking the defendant to  perform an agreement which was not entered into between the parties. However,  this  matter  can be looked  at  from  a  slightly different angle also in that when the Commissioner  prepared the  map the plaintiff questioned it in the High  Court  and the High Court accepted the Commissioners map showing  which was  the  property  to  be sold  by  the  defendant  to  the plaintiff  and this map did not contain one foot of land  to the north of the property.  The contention about one foot of land  to  the north was already negatived and could  not  be reagitated  before  the High Court.  Even  apart  from  this technical   aspect  substantially  on  evidence  also   the, plaintiff  fails on this point.  Yet she delayed  performing her part by insisting upon buying one foot of land. Another  dispute between the parties was with regard to  the claim  of  Rs. 2,000/- which the plaintiff appears  to  have paid  to  the  tenant to get him vacate  a  portion  of  the premises  so that she could take over possession.  Both  the trial  court  and the High Court have  rejected  this  claim observing  that if the plaintiff voluntarily paid  something for  her own benefit she could not claim the same  from  the defendant.   There is nothing to show that this  amount  was paid by the plaintiff on behalf of the defendant or with the consent  or  concurrence of the defendant.   The  plaintiff, till 1968 when she deposited the balance of consideration in the  Court, was not entitled to be put in actual  possession and  yet  if  she was put in  possession  of  a  substantial portion  of  the premises and she for her own  benefit  paid something  to  the tenant in a portion of  the  premises  to vacate the same so that she can enjoy it, it was a voluntary payment  made  by her for her own benefit and  not  for  the benefit of the vendor.  That amount was used by her for  her own  benefit and could not be recovered from the  defendant.

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On  the contrary, this claim would show that  the  plaintiff was putting hurdles in the way of performing the contract. Mr. Chatterjee argued that the High Court clearly  committed an  error  in  law  in holding that  the  plaintiff  had  no wherewithal  to pay the balance of consideration and it  was further  argued that the High Court took into  consideration extraneous  circumstances  such  as the  insolvency  of  the husband of the plaintiff to come to the conclusion that  the plaintiff had not necessary wherewithal with her to pay  the balance of consideration.  In this connection the plaintiffs case is that the amount of Rs. 2,000/- paid as earnest money was  advanced  by  her husband and she was  to  procure  the balance of consideration by selling her ornaments which  she had  with  her.   The plaintiff has  not  stepped  into  the witness  box.   There is no material to show  that  she  bad enough  ornaments  which  would  have  fetched  nearly   Rs. 45,000/-. 853 But reliance was placed on the pass books of the plaintiff’s husband.   The pass books show an overdraft account  in  the name  of  the husband of the plaintiff.  Assuming  that  the entries  in  the  pass book show that  the  husband  of  the plaintiff  could have procured the amount,  the  plaintiff’s case  is that she was to sell the ornaments to  procure  the balance of consideration.  If that was the case, she  wanted to  make  out, it was incumbent upon her to  step  into  the witness box.  Now, as against this, there are some  telltale facts on record which permit an irresistible inference  that the plaintiff did not have necessary wherewithal to pay  the balance of consideration and therefore, she put forth one or the  other excuse to avoid the performance, of her  part  of the contract.  Two such pretexts can be readily pointed out, one  when she insisted for the, sale of one foot of land  to the north of the property which claim was thoroughly  unjust and  improper, and second, the demand of- Rs, 2,000/-  spent by  her  in  making  the tenant  vacate  a  portion  of  the premises.  The contract was to be completed by April 1956 it was not completed till 1957 even though the defendant  after satisfying  the  queries of the  plaintiff  fixed  different dates  on different occasions calling upon the plaintiff  to complete  the  transaction.  Thereafter plaintiff  filled  a suit.   The  suit was decreed on 30th April 1962.   We  have already  at another place referred to this decree. to  point out  that  the plaintiff by that decree was called  upon  to deposit  the balance of consideration within 30 days of  the date of the decree.  This would mean that she had to deposit the  balance of consideration by the end of May  1962.   She did  not  deposit the amount by the  stipulated  date..  She asked  for  extension  of time.   Thereafter  she  moved  an application  for ascertaining the area of excess land  which was  being  sold  to her.  Under this pretext  she  did  not deposit  the balance of consideration.  Thereafter when  the Commissioner  prepared the map and the Court  fixed  another date to deposit the amount, she questioned the order of the. Court  in the High Court and after the High Court  dismissed her revision application and called upon her to deposit  the balance  of  consideration she again  sought  extension  and ultimately deposited the amount on 6th February 1968.   This would  show that at the material point of time she  did  not have  the  necessary  wherewithal  to  pay  the  balance  of consideration  and  to take the conveyance  and  this  would provide tell-tale evidence to explain her conduct in putting forth one or the other impediment in the path of performance of the contract.  If in the background of this evidence  the High Court reached the conclusion that she did not have  the

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necessary  wherewithal  with  her  to  pay  the  balance  of consideration  and take the deed of conveyance,  one  cannot take  any  exception  to  it. But  in  this  connection  Mr. Chatterjee  contended  that the plaintiff  seeking  specific performance  of the contract is. not required to  show  that she has at all material time necessary cash with her to per- form  her  part  of  the contract.  It  is  enough  if  the- plaintiff  can show that she was in a position to raise  the money required at or about the time when the contract was to be;  performed and she discharges the obligation of  proving readiness and willingness so far as the financial aspect  is concerned.  Reliance was placed on Jitendra Nath Roy v. Smt. Maheswari Bose(1).  Undoubtedly, the question would be, (1) A.I.R. 1965 Calcutta 45. 854 while  examining  the  readiness  and  willingness  of   the plaintiff  to perform her part of the contract to  find  out whether she would be in a position to take the conveyance by paying the balance of consideration and that the enquiry may well  be, made whether she would be in a position to  raise- the money.  Reference was also made to Bank of India Ltd. v. Jamsetji A. H. Chinoy and Another(1), where it was held that the plaintiff seeking to prove that he was ready.and willing to  fulfil his financial obligations has not necessarily  to produce  the  money  or  to vouch  a  concluded  scheme  for financing  the transaction.  After the High Court  dismissed her revision application and fixed the date 8th January 1968 for depositing the amount, she had no further contention  to put  forth and she should have deposited the amount yet  she sought  extension  of time.  And along with this,  one  must keep  in  view  her  contention that she  had  to  sell  her ornaments  to  raise the amount for which she did  not  step into  the  witness.box  to prove her  contention.   In  this background  it does appear that the plaintiff had  not  the. necessary wherewithal to perform her part of the contract. It   was  next  contended  that  the  relief  for   specific performance  being discretionary and the trial Court  having exercised its discretion one way in favour of the plaintiff, the High Court should not have interfered with the same.  It may be recalled that on major points of dispute between  the parties  the  trial  Court  and  the  High  Court   recorded concurrent  findings to wit the claim of the  plaintiff  for sale of one foot of land to north of property and the demand of  Rs.  2,000/-  spent by the plaintiff  for  removing  the tenant.   The  third dispute was about removal  of  fixtures from  the northern wall by the defendant.  The  trial  court held  that the defendant committed default in  removing  the fixtures.    Our  attention  was  drawn  to   the   relevant correspondence  on  the  subject.  It  was  urged  that  the defendant  was  required  to  remove  the  fixtures  on  the northern  wan.  On this point the trial court held that  the defendant  committed default in removing the  fixtures.   In fact, the correspondence would show, that the fixtures could be.  removed  in a short time and the defendant  was  always willing  to  remove the fixture.  But the trial  court  held that  the defendant committed a default in this  behalf  and recorded  a  finding  that as both  the  plaintiff  and  the defendant  committed default law must take its  own  course, viz.,  the  plaintiff  should  get  a  decree  for  specific performance of that contract.  The High Court examined  this contention meticulously. ,So have we done here.  In fact, it prominently  appears that the plaintiff put  off  performing her part of the contract presumably because she had not  the necessary wherewithal to take the conveyance when she  would be  obliged to pay the balance of consideration  and  having

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obtained  possession  struck on to it  without  meeting  her obligation.  If in this background the High Court interfered with  the  decree  of  the  trial  court,  we  see   nothing objectionable in it.  The decree for specific performance in this case has been rightly refused and this appeal is liable to be dismissed. (1) 77 I.A. 76. 855 Al  one  stage  Mr. Chatterjee wanted us  to  work  out  the equities  of  ’the situation but as, we are of  the  opinion that the plaintiff is not entitled to a decree for  specific performance  of the contract, we need not examine the  same. Accordingly, this appeal fails and is dismissed with costs. S.R.                        Appeal dismissed. 856