SAUKHI SAH Vs. MAHAMAYA PRASAD SINGH

JUDGEMENT

(1.) This is an appeal against the decision of the learned District Judge of Muzaffarpur in which he dismissed the plaintiffs claim in an action for specific performance. Both the Courts have come to the conclusion against the plaintiffs on the assumption that time is of the essence of the contract which was entered into between the parties and that on the date fixed for the completion, which was the 5 December 1926, the plaintiffs were not ready and willing to perform their part of the contract. For the reasons which I shall in a moment state I am clearly of the opinion that time is not of the essence of the contract.

(2.) In an action for specific performance it is necessary for the plaintiff to prove the existence of a concluded contract between himself and the defendant and that ha was ready and willing at all material dates to perform his part of the contract. The plaintiff has succeeded on the first point, that is to say there was a binding contract between him and the defendants. As regards the question of the performance on the part of the plaintiffs, both the Courts below have come to the conclusion that neither on the 5 December nor on any date prior to that date were the plaintiffs ready to pay the balance of, the purchase money.

(3.) Now the contract was in the form of a letter which was to this effect: The consideration money of 1 anna share in Touzi No. 3569, village Rahimpur, pargana Hajipur, has been fixed at Rs. 3,685, out of which you have at present deposited Rs. 375 which has been deposited in the cash room. You will pay the balance in one lump sum on the 15 Aghan 1334 Fasli, but if you do not do so, you, will not be entitled to get back Rs. 375. One point, however, arose in the argument with regard to it and that was, as I understood It, that by reason of the allegation of the plaintiff and by reason of his evidence there was some sort of variation of the original contract to complete on the 5 December. That, however, in my judgment, does not appear to have been the case of the plaintiff, but seems to have been a part of his attempt to prove that he in fact had a contract with the defendants which was binding upon them. But, as I have already indicated, we are not concerned with that matter when once it has been held in this case that there was a contract which, according to its terms, was to be completed on the 5 December.