SAMBHUNATH CHAKRAVARTY Vs. SUSHAMA SINHA

JUDGEMENT

(1.) This is an appeal against a judgment and decree of reversal. The plaintiff instituted the suit on April 11, 1968 alleging that her husband required a sum of Rs. 4,500 at the material time and to obtain the amount she entered into a contract of loan with the defendant for the said amount against conveyance to him of two properties one for Rs. 1,000 and the other for Rs. 3,500 on condition that if the amounts were repaid within Chaitra 1374 B. S. the defendant would reconvey the properties to her Accordingly the plaintiff executed a kobala on Magh 18, 1373 B. S. February 1, 1967, conveying one of the properties to him for Rs. 1,000. There was also another kobala whereby the plaintiff conveyed other property to the defendant for Rs. 3,500. On the same day there were two agreements executed by the defendant and duly registered whereby the defendant agreed to reconvey the properties to her under terms stated above. The plaintiff's case is that she tendered the amount of Rs. 1,000 repeatedly during Chaitra 1374 B. S. but the defendant avoided and refused acceptance of the same, contrary to the terms of the contract. In this state of affairs the suit was instituted even prior to the expiry of Chaitra 1374 B. S. for a decree for specific performance of the contract by the defendant as agreed and for execution of the kobala in her favour in respect of the property comprised in her kobala for Rs. 1,000 as aforesaid as she was and had been always ready to perform her part of the agreement.

(2.) The suit was contested by the defendant by filing a written statement wherein the allegations of tender of money were denied and it was contended that the plaintiff not having performed her part of the contract was not entitled to enforce the contract.

(3.) The learned Munsif on a trial of evidence held that the plaintiff failed to prove that she ever performed her part of the contract or was ready for performance within the stipulated period in terms of the agreement. The Court further observed that the plaintiff failed to deposit the amount in court even as per terms of the said agreement. It will appear from the record that on April 25, 1968 the plaintiff filed an application for exempting her from depositing the amount which prayer was rejected. Thereafter on the same day she filed another application for deposit of the amount within a month on the ground that the amount was kept in deposit with her uncle-in-law who had gone abroad?) This prayer was allowed. On May 21, 1968 she made an application for exempting her from depositing the money on the ground that the amount was kept in deposit with her uncle-in-law who had gone on pilgrimage and there was likelihood of inordinate delay in his return. This prayer was allowed on at the risk of the plaintiff. It appears that on December 23, 1968 the Court fixed January 7, 1969 for deposit of consideration.