GIRISH AND ANOTHER Vs. MALLIKARJUN DURGARAM KAMBLE (MAJOR)

JUDGEMENT

(1.) THIS appeal which is directed against a judgment and decree passed by the III Additional Civil Judge and C.J.M., Belgaum in O.S. No. 211 of 1986 concerns the interesting question as to whether a Court will enforce specific performance in the case of a time -bound contract relating to immovable property if the Vendee gives notice virtually at the eleventh hour and conversely, as to whether a Court which passes a decree for specific performance on a suit that has been instituted after a considerably long delay is required to take into account the change of circumstances during the intervening period and the consequences thereof. Particular accent is required to be focused on the second of these two points which for one reason or the other has hardly ever been specifically considered and acted upon by the Courts.

(2.) THE brief facts that have given rise to the present appeal are that the original Plaintiff was residing along with his father who was the tenant in respect of a building situated on R.S. No. 1365/A/1 at Sadashivanagar in Belgaum City bearing C.T.S. No. 10928 and 10927 ad -measuring 60 and 576 square yards respectively. The Plaintiff and the Defendants 1 and 2 through their power of attorney holder entered into an agreement to sell the suit property to the Plaintiff for a consideration of Rs. 1,45,000/ - on 16.5.1983. An amount of Rs. 50,000/ - was paid to the Vendors on that date as an advance by way of part payment and the agreement stipulated that the remaining amount of Rs. 95,000/ - was to be paid at the time of execution of the sale deed within a period of one year. The agreement in question was registered on the same date. The Plaintiff's case is that he attempted to meet the Defendants on two occasions and he was unable to do so and therefore on 9.4.1984 which is virtually seven days before the time limit for the compliance, he addressed a notice which is Ex.P.4 to the power of attorney holder of the Defendants 1 and 2 calling upon him to comply with the requisite formalities namely to get the sale deed executed and accept the balance consideration of Rs. 95,000/ -. There is on record a reply to this notice which is dated 12.5.1984 but the Plaintiff has succeeded in demonstrating that the reply was despatched only on or about 18.4.1984 i.e. two days after the prescribed deadline and the allegation is that it was deliberately anti -dated. The Defendants have denied that the Plaintiff tried to approach them earlier and have also contested what was pointed out in the notice dated 9.4.1984 whereby they were required to complete the conveyance after taking steps to ensure that the property was free of encumbrance. The Defendants in effect contended that the Plaintiff has approached them too late and that consequently, if they are required to sell the property to some other person they would hold the Plaintiff liable for the loss if any that occurred, deduct the same from the advance payment of Rs. 50,000/ - and refund the balance. There was a long silence thereafter and almost one year later i.e. on 15.4.1985 the Defendants served the notice on the Plaintiff which is Ex.P -6 repudiating the agreement and effectively blaming the Plaintiff for what had happened. On 3.5.1985 the Plaintiff sent a reply to this notice which is Ex.P -7 contending that one Sri Uppin was residing in a portion of the house, that the Defendants were obliged to get that area vacated, that the Plaintiff had been waiting for this to happen and he reiterated that he was ready and willing to perform his obligations as soon as this was completed. He also contended that the agreement is subsisting and insisted on due compliance. Almost one year lapses again and it was only on 26.5.1986 that the Plaintiff filed a suit in Court praying for a decree for specific performance.

(3.) AT the hearing of the appeal, Mr. Shastri, learned Counsel who represents the Appellants vehemently submitted that this being a case of sale of immovable property in the city of Belgaum that the question inevitably arises as to the upward revision of values of such properties with the passage of time. He submitted that there was very valid ground for the provision in the agreement that the transaction had to be completed within one year and it is his submission that this was the outer deadline. Learned Counsel submitted that time was of the essence of this contract and that consequently if the Plaintiff was serious about enforcing his rights and buying the property that he was obliged to take the necessary steps that were required of him within a reasonable time before 16.5.1984 which was the cut off date. He points out that the Plaintiff ought to have procured the requisite stamp paper or tendered to the Defendants the purchase price thereof well before the deadline along with due notice of the fact that the Plaintiff intended to pay off the balance amount and get the sale deed executed before 16.5.1984. This presupposes the fact that if there are any other formalities apart from the time required for drafting and finalising the sale deed that allowance must be made for this and it is his submission that having regard to the time -frame required for all of these procedures that the Plaintiff was obliged to have set them in motion atleast not less than fifteen days before the deadline. I need to mention here that there was considerable debate between the learned Counsel on both sides with regard to the question of the income tax clearance certificate. Mr. Shastry's submission was that only on receipt of the notice from the Vendee that he was in fact coming forward to pay the balance consideration and complete the transaction, that the Defendants were obliged to approach the authorities and obtain the certificate and he points out that even with all the possible expedition that this could never have been obtained from the department in less than a couple of weeks. The Respondents learned Counsel vehemently submitted that having entered into the agreement, the Defendants' should have on their own taken steps to obtain the income tax clearance certificate and kept it ready for production at the time when the sale deed was executed and that his client was under no obligation to give advance notice in this regard. In my considered view, the correct position is that the Plaintiff was equally obliged to consider what would be a reasonable time -frame and to have made allowance for the Defendants to obtain the income tax clearance certificate after they were informed that the Plaintiff was desirous of completing the transaction and they were under no obligation to apply at any time earlier because the agreement provided for a full year and a tax clearance certificate that was many months old would not have held good at the stage of registration. I shall however consider the implications of this aspect of the case subsequently.