BURJORJI DHUNJIBHAI CONTRACTOR Vs. JAMSHED KIRANI

JUDGEMENT

(1.) This is an appeal from a decree for specific performance passed by Mr. Justice Macleod at the instance of a purchaser of immoveable property.

(2.) The contract for sale was made on the 8th of July 1911 in the Gujarati language. The subject-matter was certain land situate at Kelva-JMahim belonging, to the defendant -which had been taken from Government on lease for 999 years under what are known as the Gujarat Rules, the lease commencing from the 1st of August 1890. The purchase-money was fixed at Rs. 81,000 which by the agreement now under consideration was to, be paid as to Rs. 80,500 at the time of signing the document of sale and as to the balance on the transfer of the land after registration. The provision as to the payment of the consideration-money appears to have been varied by another agreement of even date under which in lieu of Rs. 30,000 part of the consideration the defendant agreed to take a property belonging to the plaintiff situate at Parbhadevi in Mahim within the Island of Bombay. The agreement for sale contained three clauses which are of special importance with reference to the questions arising in this case, viz., case. 2, 5 and 7. 2. The pakka (formal) sale (conveyance) of this land is to be prepared and received within two months from this day. And at the time of signing the document of sale, Rs. 80,500 are to be paid. And as to the balance of Rs. 500, the same is to be paid on the transfer of the land (after) the document shall have been registered. 5. On payment of Rs. 81,000 by the purchaser to the vendor as mentioned in the above el. 2, the document of sale (conveyance) is to be got executed by the vendor. But should I not pay the amount within the fixed period given (herein) then I shall have no right (or claim) to Rs. 4000 paid this day to you under this bargain paper as earnest money on account of (this) sale. And if I prefer (any) claim, the same is null (and void). And after this date the vendor of this property has authority in every way to sell the same to another. 7. The boundaries (limits) of the above property are to be shown and the (boundary) marks are duly to be made (P fixed) by the vendor at his expense and are to be given to the purchaser. The grass (growing) on this land for the current monsoon has been given (sold) for Rs. 10,500. The vendor is duly to give credit for that amount to the purchaser.

(3.) The agreement was entered into at the beginning of the monsoon and the price realised by the monsoon grass-crop, which would be reaped probably in September, was to be credited to the purchaser against his purchase-money, presumably on the assumption that he would have come into possession by the time the crop was reaped. After the conclusion of the agreement, the matter was taken in hand on behalf of the plaintiff by Messrs. Little & Co. and on behalf of the defendant by Messrs. Bicknell Merwanji and Romer. The correspondence between these firms of solicitors during the first two months after the execution of the agreement shows that both the parties believed completion within the time stated to be essential; and requisitions were made by the plaintiff s attorneys and answered by the defendant s attorneys upon that basis until the early part of September when the plaintiff changed his attorneys. A change of front then took place on the part of his advisers and it was for the first time denied that time was of the essence of the contract. Objections which had been dropped by Messrs. Little and Co. were revived by their successors Messrs. Mulla and Mulla, notwithstanding constant pressure by the vendor s solicitors and limited extensions of time until the defendant s patience being exhausted the contract was finally cancelled. Thereupon the objections which had been persisted in were waived and a suit was commenced for specific performance.