DEBENDRA NATH MANDAL Vs. SAKHILAL KAR

JUDGEMENT

(1.) THE plaintiff appellant filed a suit for the specific performance of a contract, the terms of which are contained in a compromise petition which had been filed in an earlier suit between the parties. The plaintiff had paid either the whole or a substantial portion of the consideration money for a certain property under the terms agreed upon, and the plaintiff was required to pay an additional amount of Rs. 28 within one month from the date of the compromise, namely, 18th November 1943, and the defendants were required to execute the conveyance according to the agreement. The plaintiff's case was that after the compromise had been entered into, he had attempted to pay the money and to get the conveyance, but without success. Hence, the present suit for specific performance of the contract and for getting a conveyance from the defendants. It may be stated further that out of the properties which were to be conveyed under that agreement, possession of one of them had been delivered to the plaintiff already. The plaintiff continued in possession of that plot and is still continuing in possession thereof. Delivery of possession is also prayed for in respect of the property of which delivery of possession had not been given. The defence in the main was that the allegation of tender as made by the plaintiff was not true. The payment not having been made within the stipulated period of one mouth, the contract was neither operative nor enforceable. It is not necessary for our present purpose to refer to other points which had been raised in the pleadings.

(2.) THE learned Munsif decreed the plaintiff's suit holding in favour of the plaintiff on all the material points. On an appeal being taken by the defendants to the Court of the Subordinate Judge, the suit was dismissed. It has been found by the learned Subordinate Judge that (1) time was not the essence of this contract; (2) the plaintiff has not proved that he was all along ready and willing to fulfil his part of the contract; and (3) the plaintiff did not pay the money as stipulated in the contract. On these findings, the plaintiff's suit was dismissed. Hence this appeal by the plaintiff to this Court.

(3.) IT is now well settled that a plaintiff who seeks specific performance of a contract has to show first that he has performed or been ready and willing to perform the terms of the contract on his part to be then performed and secondly that he is ready and willing to do all matters and things on his part thereafter to be done. If there is a default on his part in either of these two respects, that furnishes a ground upon which the plaintiff's claim may be resisted. Manik Chandra v. Abhoy Charan, 24 C. L. J. 90 : (A. I. R. (4) 1917 Cal. 283).