KRISHNA CHANDRA DEY Vs. WGRAHAM

JUDGEMENT

(1.) The plaintiff is the appellant before us and the facts which have given rise to the suit, out of which this appeal has arisen, are, briefly stated, as follows:--By an agreement in writing made on the 15 day of September 1919, the defendant agreed to sell and the plaintiff agreed to purchase certain lands, measuring about 24 1/2 bighas, in Tollygunge, in the suburbs of Calcutta, particularly described as plots A and B in the schedule annexed to the said agreement, free from encumbrances, for a sum of Rs. 1,53,000. The vendor agreed to deliver to the purchaser's Solicitor the title-deeds relating to the said plots A and B within two days from the said date and the purchaser agreed to send in his requisitions in respect of the title within five days from the date of the delivery of the title-deeds. The requisitions were to be answered within five days thereafter. The vendor agreed to make out a marketable title to the said properties and in case of failure, to refund to the purchaser the latter's deposit of Rs. 501 without interest. It was also agreed, inter alia, that on the vendor making out a marketable title, he should execute a proper conveyance in favour of the purchaser, causing all unnecessary parties to join therein, and that, in the event of the purchaser failing to complete the purchase within fourteen days from the date of the delivery of the title-deeds, the vendor should be entitled to cancel the said agreement and to forfeit the amount of the vendor's deposit. On the 16 September the title-deeds in respect of the properties were handed by Messrs. Leslie & Hinds, the vendor's Solicitors, to the plaintiff's Solicitor, Mr. Rajendranath De. On the 19 September, the requisitions on title were sent to the vendor's Solicitors. It was pointed out therein by the plaintiff's Solicitor that it appeared from a certain conveyance bearing date the 12 July 1904, that Mrs. Kate Graham, the wife of the vendor, was the owner of one of the properties comprised in the schedule to the said agreement and an enquiry was addressed as to how the vendor proposed to sell the said property. The answer to this requisition, which was given on the 24 of September, was in these words, "Mrs. Graham will concur in the same." Another requisition, being Requisition No. 16, was in these terms "is the vendor alone competent to convey an absolute title to the properties free from all encumbrances," and the answer was, "Yes, with the concurrence of Mrs. Graham." The answers to the requisitions were not received by the plaintiff's Solicitor till the 25th September and on that date he asked that the title-deeds might be returned to him to enable him to consider the sufficiency of the answers (see Exhibit 8). On the 27 September the vendor's Solicitors drew the attention of the plaintiff's Solicitor to the fact that the completion of the transaction under the agreement must take place on or before the 30 September and asked for the draft conveyance for the approval of the vendor. On the same day, the plaintiff's Solicitor again wrote to the vendor's Solicitors asking for the title-deeds, without which, it was pointed out, the sufficiency of the answers could not be considered. On the 29 September the plaintiff's Solicitor wrote a further letter to the vendor's Solicitors asking for the title-deeds and protesting against the unreasonableness of the attitude taken up by the vendor's Solicitors and he pointed out that some of the answers to the requisitions were unsatisfactory. However, on the 29 September the vendor's Solicitors wrote to the plaintiff's Solicitor purporting to return the title-deeds to the plaintiff's Solicitor and on the 30 September they wrote the following letter to the plaintiff's Solicitor:--"According to the terms of the agreement, the conveyance of the above premises should have been executed to-day. As your client failed to do this, we have been instructed by our client to give you notice that the agreement is cancelled and the deposit money forfeited to the vendor." It appears that on the 29 September the plaintiff's Solicitor closed his office for the Long Vacation, without receiving the title-deeds in question, and on the 30 September he left town. What happened subsequently was this,--the title-deeds in question were, brought to the clerk of the plaintiff's Solicitor, after the latter had left town, and he, the clerk, at first refused to receive the. Same but on the vendor's Solicitor's clerk refusing to take back the title-deeds, the plaintiff's Solicitor's clerk kept the same with him, without the knowledge of the plaintiff's Solicitor. Meanwhile, on the 6 and 7 October, the vendor's solicitors kept on asking for the return of the title-deeds. These letters, however, were returned by the plaintiff's Solicitor's durwan on the ground that the office was closed. On the 8 October, the plaintiff's Solicitor, having returned to town, asked for the title-deeds to enable him to deal with the sufficiency of the answers. Thereafter, a controversy arose as to whether the title-deeds had not been returned to the plaintiff's Solicitor and whether the contract had not already been cancelled. The question about the title-deeds was not settled until the 4 November, when it was discovered that the title-deeds had been left with the clerk of the plaintiff's Solicitor. On that date, further requisitions on title were sent by the plaintiff's Solicitor, On the 5 November, the vendor's Solicitors returned these further requisitions and declined to answer them on the ground that the contract had already been cancelled by reason of breach of contract on the part of the plaintiff. The plaintiff, thereupon, on the 10 November, having regard to the attitude of the vendor, instituted the present suit against the vendor, claiming specific performance of the said contract or, in the alternative, damage, which he assessed at Rs. 1,00,000. The defendant in his written statement contended that time was of the essence of the contract, and that the transaction had to be completed under the terms of the agreement between the parties, within fourteen days from the date of the delivery of the title-deeds to the plaintiff's Solicitor and that as the plaintiff had failed and neglected to complete the transaction within the time limited as above, the defendant was within his rights in cancelling the agreement. The defendant maintained that he had performed his part of the contract and although it was the plaintiff who was not ready and willing to perfrom his part of the said agreement, the defendant was willing to return to the plaintiff the amount of the said deposit. The learned Subordinate Judge, who tried the suit, held by his judgment dated the 27 November 1920 that time was not of the essence of the contract but that, inasmuch as it appeared that one of the two properties mentioned in the schedule to the said agreement belonged to the wife of the defendant, who. was not a party to the said agreement, and as the defendant had no authority to enter into any agreement in respect of the said property on her behalf, the plaintiff could not get any decree for specific performance of the contract so far as that property was concerned. As regards the question as to whether the plaintiff could enforce partial performance of the contract in respect of the property which belonged to the defendant, it was held that, although under Section 15 of the Specific Relief Act, the plaintiff could claim such a right, provided the plaintiff was willing, to pay the price agreed upon and take the property which belonged to the defendant, waiving all right to compensation either for the deficiency or for loss sustained by him through the defendant's neglect or default, yet no such case was made by the plaintiff and, therefore, the learned Subordinate Judge dismissed the entire suit.

(2.) On behalf of the plaintiff appellant it had been contended by Dr. Dwarkanath Mitter before us that, although the Court will not specifically enforce part of a contract, except where that part can he separately enforced without any possible injustice to the defendant, where property is sold in distinct lots there is a separate contract for each lot and secondly, that the principle that the Court will not perform part of a contract if it cannot perform all, did not a ply to cases where the impossibility of carrying a part into execution was due to the default of the defendant who set up this defence, for to permit it to prevail would be opposed to the maxim that no man shall take advantage of his own wrong. The learned Advocate-General, on behalf of the defendant-respondent maintained, however, that the plaintiff's case came within the four corners of Section 15 of the Specific Relief Act and that in as much as the plaintiff had not complied with the provisions of that section, the entire suit had been rightly dismissed. To this the plaintiff-appellant replied that this case was governed by Section 16 of the Specific Relief Act and that Section 15 on which the defendant relied, had no application whatsoever to the facts of this case.

(3.) The learned Advocate-General admitted before us that time was not of the essence of the contract in this case, nor had time been subsequently made of the essence of the contract by notice on the part of the defendant. It was also admitted on behalf of the defendant that at the time of the agreement between the parties he had not disclosed that one of the lots comprised in the schedule to the agreement belonged to his wife. The defendant stated, in his evidence that, without consulting his wife, he had entered into the agreement, as he was sure that his wife would join with him in executing a conveyance in favour of the plaintiff. Thus, it was that he had said in the re lies to the requisitions that his wife would concur in the Sale. He had no power, how ever, over his wife and if she refused, he could not make her join with him in the conveyance. Asked about whether the replies to some of the requisitions might not have been more satisfactory, the defendant seemed to imply that they might have teen.