KRISHNA CHANDRA SHARMA Vs. RAMGULAM

JUDGEMENT

(1.) THIS appeal has been filed by the plaintiffs against the decision of the Civil judge Class I, Sagar, in Civil Suit No. 13-A of 1950.

(2.) THE plaintiffs had executed a sale-deed on 1st February, 1949 (Ex. P-5) in respect of their Malik Makbuza plot No. 46/1 situated at Khurai town for Rs. 7,262/8/- which consisted of Rs. 5,000/- paid on 1st February, 1949, Rs. 2,000/paid on 4th February, 1949 and Rs. 262/8/- future interest for five months in advance. On the same date, the defendants executed an agreement (Ex. P-6)agreeing that 'they would reconvey the plot to the plaintiffs if an amount of Rs. 7275/'- was paid by them at any time up to 1st July, 1949. The plaintiffs stated that on 24th June, 1949, 29th June 3949 and 1st July, 1949, they offered to pay the defendants the agreed amount but the defendants put oil executing reconveyance on various excuses. On 2nd July, 1949, the defendant No. 1 met the plaintiff No. 1 in the Bar Library, at Khurai and promised to execute a sale-deed it the amount was produced in cash. When the amount was produced, the defendant no. 1 slipped away and avoided to execute a sale-deed. The plaintiffs had pleaded that the transaction amounted to a mortgage by conditional sale and although the period fixed for payment expired on 1st July, 1949 that day being a holiday, the amount could be paid on 2nd July, 1949. At any rate, the plaintiffs stated that time was not of the essence of the contract and, therefore, they could repay the amount with a reasonable time which they had always been prepared to do. They accordingly claimed to redeem the mortgage or in the alternative to enforce specific performance of the contract to reconvey the plot.

(3.) THE defendants denied that the plaintiffs had made any offer to pay the sum in the last week of June or on 1st July, 1949 as alleged. They dented that any offer was made on 2nd July, 1949 in Khurai Bar Library. They pleaded that as the time fixed for the repayment had expired, the right o[ the plaintiffs to ask for reconveyance had lapsed.