KUMARA SWAMI Vs. VICTORIA

JUDGEMENT

(1.) THESE two appeals arise out of two suits in one of which the appellant is the plaintiff and in the other he is the defendant. As plaintiff he sued in O. S. No. 112 of 1122 of the District Court of Trivandrum for specific performance of contract to sell land which was in his possession under a mortgage and as defendant in O. S. No. 113 of 1122 of the same court he resists the suit for redemption filed by the respondent who claims to have purchased the equity of redemption from the original mortgagor. The suit for specific performance was dismissed and the suit for redemption allowed.

(2.) THE plaint property originally belonged to Sri Masilamony who for some time was the State Geologist of Travancore. He mortgaged the property to plaintiff under Exhibit V mortgage dated 5. 6. 1939. It was for a sum of Rs. 2000/- and for a period of three years. To the plaintiff these premises were essential for purposes of his transport business and it was acknowledged on all hands that its importance and utility had risen considerably with a new contract he had entered into with the railway authorities in 1942. THE plaintiff was thereupon said to have approached the mortgagor for an extension of the term of the mortgage. Nothing appears to have come out of it as the latter was in a hurry to sell the property. He accordingly wrote to the plaintiff on 13th July 1943 intimating his intention to sell the property to whomsoever that chose to purchase it. As a result of this letter the plaintiff hurried to meet the other in his house at Trivandrum on the 15th July when they were said to have come to a certain definite agreement relating to the sale of the property. One of the conditions was that they should meet again on 17th july, prepare the draft and in another seven days' time register the conveyance for a sum of Rs. 6000/-, paying Rs. 4000/- only after deduction on account of the mortgage. This meeting on the 17th July did not take place owing to the inconvenience of the plaintiff as a result of which Sri Masilamony sent Ext. B letter to the plaintiff on the same day repudiating the contract. On receipt of the letter the plaintiff hurried to Trivandrum with the sum of Rs. 4000/- and requested the other to execute the deed on acceptance of the amount. THE latter was however found to be intractable. He refused to consider the contract as still binding for the simple reason that the plaintiff had as stated in Exhibit b letter neglected to meet him on the appointed day and perform what he had undertaken to do. THE plaintiff returned disappointed hoping that better counsel would prevail when he had sufficiently cooled down. In the meantime the respondent, a provision seller from Ceylon who had established a provision store on the opposite side of the road appeared on the scene. He knocked off the bargain for the identifical sum of Rs. 6000/- and immediately without further enquiry took Ext. VI sale-deed on 16. 9. 1943. THE plaintiff thereupon brought the present suit for specific performance of contract in which both vendor and vendee were made parties. This was followed by the respondent's suit for redemption. THE vendor and vendee both denied the contract alleged by the plaintiff and the respondent-vendee pleaded that in any event he was protected as a bona fide purchaser without notice. THEse are the simple facts of the case.

(3.) INSTEAD of sending a reply as desired of him the plaintiff went to Trivandrum and interviewed the other. This indicates, to our mind, his evident anxiety for closing the deal without correspondence and consequent delay. Sri. Masilamony merely wanted to sell as early as possible and leave the place with the money he could get out of the transaction. On all account he was prepared to sell the property for Rs. 6000/- including the mortgage and so far as the plaintiff was concerned he was anxious to purchase it no matter what the price was. So on the question of the intention of the former and the preparedness of the latter there could not be any doubt. It is in this setting that we have to read Ext. B. This, to our mind, indicates in clear terms that both had come to an agreement, the one to sell and the other to purchase, for Ext. B is meaningless if it is not read and understood in the above sense. It is conceded by both parties that on the 15th they had agreed to meet again on the 17th but that the meeting did not take place on that date. It is unnecessary to enquire into the reasons for the failure; all that we are concerned with is whether the failure of the plaintiff to turn up on the 17th would justify the other from resiling from whatever contract he had entered into with the plaintiff on the 25th. That will depend on the question whether there was a completed contract on the 15th. Ext. B letter reads as follows: "as you have not made your appearance today as promised by you on Thursday when you met me here, I take it that you are not prepared to purchase my property at Nagercoil. I consider that I am released from the promises made on that day; and that I am free to make other arrangement. " This, to our mind, is capable of only one interpretation and that is that an agreement has come to between him and the plaintiff on the previous day from the obligations of which he could be released only with the consent of the other. That at any rate was how Sri Masilamony had understood it and no one can have right to understand it in any other manner. We do not speak of release from the promises except where a binding promise has been made and you do not ask for freedom to make other arrangements unless that freedom has been lost for some reason. We are unable to understand what could have been this promise of the 15th except that he would sell the land to plaintiff for Rs. 6000/ -. It was a binding promise which in his view could be relieved against only with the concurrence of the other contracting party or as he thought in this case there was a breach of an essential condition. Admittedly the plaintiff failed to turn up on the 17th as he had promised. What we have to consider is whether the failure of the plaintiff to turn up on the 17th was such a breach of the contract as would relieve the other from the obligation to perform his contract. Was he justified in his conclusion that an plaintiff had not turned up he was not prepared to purchase the property? He had only one idea uppermost in his mind, that is, the sale of his property. The speed with which he was to get the sum of Rs. 4000/-might also have been a matter of concern for him, but a delay of a day or two would not make any difference to the plaintiff so long as he was conscious that there was a binding agreement for sale. Sri Masilamony was probably a man of iron discipline, but whether it was justified in this case we doubt. Before even the appointed day is out he writes to say that the contract is broken on account of non-appearance of the other and would refuse to treat with him thereafter. He had not the good sense even to issue a notice fixing a reasonable time limit for closing the business. This, we think, is nothing but petulance and discloses an exaggerated notion of the proprieties of human conduct in every day life.