VORA SIRAJUDIN KALIMUDDIN Vs. SAFKATHASSEIN BADRUDDIN

JUDGEMENT

(1.) the suit from which this second appeal arises was instituted by the plaintiffs-appellants in the court of the Joint Civil Judge (J. D.) Godhra for specific performance of an agreement of lease executed on 6 November 1952 and as deceased Haji Badruddin has committed a breach thereof for a permanent injunction restraining him from recovering a sum of Rs. 6 0 advanced to them under a mortgage-deed dated 11th November 1952 and for costs of the suit against the original defendant Haji Badruddin Musaji Poonawala as the owner and Vahivatdar of a Firm in the name of Haji Badruddin Musaji Poonawala and Sons. On his death having taken place during the pendency of the suit his heirs and legal representatives have been joined as defendants.

(2.) The plaintiffs-appellants are brothers and they owned a house situated in Municipal Lots Nos. 137 and 138 at Godhra. During the communal riots which took place in 1952 that house was burnt. The original defendant Haji Badruddin Musaji suggested to the plaintiffs to construct a new building on the said land and agreed to advance a sum of Rs. 6 0 for the construction thereof on condition that the building was given as security for the amount. He also agreed to take on lease the building after it was ready for a period of 10 years on a monthly rent of Rs. 80.00. The building was to have a cellar a ground floor and two storeys. On 6th November 1952 an agreement to lease the said building came to be executed by the parties. The terms thereof in substance were that while Rs. 6 0 were taken by the plaintiffs for the construction of a shop of four storeys that building was to be given in mortgage for the said amount to the defendant and on the said shop becoming ready which was to be constructed within four months the plaintiffs had to let out the same to the defendant Haji Badruddin Musaji Poonawala and Sons on a monthly rent of Rs. 80.00 for a period of ten years and the latter had to execute the rent-note and get it registered. Of the amount of rent viz. Rs. 80.00 Rs. 30.00 were to be credited towards interest at the rate of Rs. 30.00 per month on the mortgage amount of Rs. 6 0 and the remaining amount of Ks. 50/- per month was to be paid to the plaintiffs for rent of the building. A mortgage deed was accordingly passed on 11 November 1952 for a sum of Rs. 6 0 by the plaintiffs and the amount did not carry any interest as under the agreement dated 6-11-1952 Rs. 30.00 out of the rent amount was to be adjusted for the same every month by way of interest on Rs. 6000.00. These terms of the agreement are not in dispute. The construction of the building was commenced and while it was nearing completion in March 1953 Badruddin suggested some alterations in that building which he was to take on lease. After obtaining the necessary permission from the Municipality those alterations were also effected. A completion certificate was obtained by them from the Municipality on 16th September 1953. Badruddin was thereupon requested by the plaintiffs to take over the said building to which he did not agree. However by a notice dated 31-10-1953 he intimated that since the building was not completed within the period of four months fixed under the terms of the agreement he wax not bound to take the property on lease. He also said that in case the interest on the mortgage amount was not paid to him as it had already become due he would file a suit for recovering the amount under the mortgage-deed executed by them in respect of that property. That notice was replied to by the plaintiffs on 8th November 1953 wherein they said that time was not and cannot be the essence of the contract and that he was trying to get out of the contract by resorting to some such lame execuse. They also called upon him to execute a registered lease-deed within 30 days and take possession of the building at the same time refering therein about the delay in constructing the building having occasioned by reason of his own desire to have certain alterations failing which they will file a suit against him for specific performance of that agreement of lease and for a declaration that the amount of Rs. 6 0 advanced by him be appropriated towards the damages resulting from the breach of the agreement. That led the plaintiffs to file the present suit for the reliefs already set out hereabove

(3.) The original defendant resisted the suit inter alia contending that the agreement dated 6th November 1952 was compulsorily registrable and since it was not registered as required under law the suit was not maintainable on any such deed for the specific performance of the agreement; that the terms of the agreement were vague and incomplete; that the time was the essence of the contract; that the alterations in the building were not made at his instance and that the plaintiffs were not entitled to any of the reliefs sought for in the suit Badruddin died thereafter and his legal representatives who were brought on record as defendants in the suit adopted the same contentions.