HAJI SHARAFAT HUSSAIN Vs. BADRI BISHAL DHANDHANIA

JUDGEMENT

(1.) This is an appeal by the defendants on a certificate granted by the High Court of Judicature at Patna under Art. 133 (1) (a) of the Constitution. The facts giving rise to it are quite simple, and may be shortly stated.

(2.) Respondent Badri Bishal Dhandhania filed a suit for specific performance of a contract for the sale of certain immovable properties by the appellants. The parties arrived at a compromise, and the trial Court decreed the suit. It was agreed in terms of the compromise petition dated May 17, 1965 that the defendants would pay Rs. 7000/- to the plaintiff towards the costs of the suit, that amount would be set off against the consideration for the sale, and defendants 1 to 4 would execute a "kebala" in favour of the "plaintiff or his nominee or nominees" in respect of the suit properties, and get the same registered by November 30, 1965. The plaintiff on his part agreed and undertook that on such execution he would pay defendant No. 1 a sum of Rs. 1,19,999/- on account of the balance of the consideration of Rs. 1,25,000/- after deducting Rs. 5,001/- on account of earnest money already paid by him to defendant No. 1, and that if the defendant failed to execute and register the "kebala" by November 30, 1965, the plaintiff would have the right to have it executed and registered by the Court "in his own favour or in favour of his nominee or nominees", and further that if the plaintiff failed to have the "kebala" executed and registered and pay the balance of the consideration, he would forfeitthe right to recover the earnest money of Rs. 5001/- from the defendants and will have no right to get the "kebala" executed. The decree was, in that case, to become infructuous.

(3.) The plaintiff contended that stamps worth Rs. 1,600/- and Rs. 1,694/- were purchased by him on November 20, 1965, stamps worth Rs. 2,200/- were purchased on November 30, 1965, and drafts of the sale deeds were handed over to defendant No. 1, on his behalf, on November 20, 1965, but the defendants did not perform their part of the obligation. The defendants contended, however, that the drafts were handed over on November 29, 1965, in the evening, and could not therefore be verified by their lawyer and there was default on the part of the plaintiff who thereby forfeited his right to get the decree executed. It was pleaded that time was of the essence of the contract. The Subordinate Judge of Bhagalpur held on July 31, 1967, that the compromise decree was no longer binding on the parties and the execution application was not maintainable because the plaintiff was not intending, from the very beginning, to purchase the property himself, but waited to sell away its bulk to others for profit and that the ten sale deeds which the plaintiff wanted to be executed in favour of various persons would drive the defendants to the institution of suits for recovery of money if the consideration was not paid at the time of execution. It was also held, inter alia, that the plaintiffs' demand for the execution of ten "kebalas" was the main hurdle justifying the refusal of the demand by the defendants because the defendants were not bound to execute ten "kebalas." The Subordinate Judge held further that time was of the essence of the contract and there was no right to have the "kebalas" executed after November 30, 1965.