R. C. Chandiok & Anr. v. Chuni Lal Sabharwal & Ors.

N. N. Keswani, for respondent No. 2. C. B. Agarwala and Urmi/a Kapoor, for respondent No. 3. The Judgment of· the Colll't was delivered by Grover, J, This is an appeal by special leave from a decree of the Punjab High Court (Circuit Bench, Delhi). On July 18, 1955, the appellants entered into an agreement with the. respondent&.,for the purchase of plot No. 8 measuring 1500 Sq. Yds in Jangpura B, New Delhi for Rs. 22,500/-. The contract was evidenced by receipt Exhibit P-6 which was in the following terms : R. c. CHAND!OK v. CHUN! LAL (Grover, J.) 575 "Received with thanks from Messrs. Ramesh Chander Chandiok and Kai!ash Chandra Chandiok the sum of Rs. 7,500/- (Rupees Seven thousand and five hundred only) as earnest money of the purchase money of Rs. 22,500/- (Rupees Twenty two thousand and five hundred) for the sale of Plot No. 8 measuring 1500 sq. yds in Jangpura B., purchased from the Rehabilitation Ministry and owned by us. The balance of Rs. I 5,000 (Rupees Fifteen Thousand only) shall be paid to us by them within one month of the execution of this receipt on the execution of the sale deed by us in their favour." It is common ground 11).at the aforesaid plot had been allott~d by the Rehabilitation Ministry to the respondents and that its possession was to be delivered after payment of rent of lease money up-to-date and after execution of the lease deed. The lease deed was actually executed in favour of the respondents on April 21, 1956. Meanwhile on August 11, 1955 foe respon~ dents wrote a letter to the appellants as follows : "With reference to the receipt dated 18-7-55 executed by us in your favour, acknowledging receipt of Rs. 7,500/- as earnest money for the sale of Plot No. 8 measuring I 500 sq. yds in Jungpura B. owned by us. and agreed to be sold to you by us, since it will take about a month more to obtain sanction of the Rehabili­ tation Ministry, the ex.ecution of the sale deed by us cannot be complete without the said sanction, it is hereby mutually agreed between us or orally that the period for execution of t11e sale deed shall remain ex­ tended till the time of the receipt of the said sanction and we hereby confirm the said oral agreement. We will inform you as soon as the said sanction is received and within a week thereof, we will execute the neces­ sary sale-deed in your favour and get the same regis­ tered against payment of the balance money. Please sign the duplicate of this letter in confirmation of the said oral arrangement." A notice dated June 15, 1956 was served by counsel for the res­ pondents on the appellants saying that the balance of considera-· lion accordin~ to the terms of the agreement dated July 18, 1955 was to be paid by the appellants and the sale deed was to be got registered within one month of July 18, 1955. It was further stated that extension had been given as desired by the appellants but the balance amount had not been paid. In para 3 it was stated "my clients are not prepared to wait indefinitely and there­ fore cancel your agreement for want of certa¥1ty and hereby give­ you an offer, without prejudice to their legal rights, to receive- .baek the sum of Rs. 7,500/- paid by you as earnest money les5 the amount of loss suffered by them on account· of lease and in­ terest etc. within one ·week of the receipt of this letter, failing which my clients would be entitled to forfeit the earnest money .and treat the agreement cancelled." A reply dated June 22, •1956 was sent by counsel for the .appellants in which reference was made to the letter dated August 11, 1955 and it was pointed out that no information had been sent by the respondents about the sanction having been -obtained from the Rehabilitation Ministry. The respondents w.ere called upon to obtain the requisite sanction and to execute ·the sale de~d against receipt of balance of purchase money. On July 4, 1956 counsel for the respondents sent a reply saying that sanction had not been granted till then and inquiries made by respondents revealed that it might not be forthcoming for an indefinite period and that it was absolutely uncertain as to when it would be granted. It was claimed that the agreement had become void on account of uncertainty and without prejudice to their legal rights the respond~nts were prepared "ex gratia" to have the sale deed registered on payment of the balance within a week of the receipt of the letter without awaiting sanction of the Rehabilitation Ministry. On November 11, 1956 the respon­ dents' are stated to have applied for sanction for transfer of the plot and it was granted on November 20, 1956. The appellants bad themselves made inquiries from the Housing and Rent Officer ·-On August 9, 1956 to ascertain whether sanction had been granted and how much time it would take to accord the sanction. By a letter dated 27 /29th November 1956 the aforesaid officer informed the appellants that permission to transfer had been given on November 20, 1956. The appellants had also taken ~teps to inform other prospective buyers about.the existence of the agreement as they apprehended that thci respondents intended transferring the same to some other party. On July 29, 1956 an advertisement was published by them in the 'Times of India'. ·declaring the ex·isience of the agreement entered into between the appellants and th~ respondent.s with regard to the sale of the afore­ said plot. On December 4. 1956 the suit out of which the pre­ sent appeal has. arisen was filed by the appellants claiming specific performance of tbe contract dated July 18, 1955 and in the alternative for refund of Rs. 7 ,500/- being the amount of earnest money and Rs. 15,000/- as damages together with inierest. Apart from taking all the necessi:ry pleas it was averred in the plaint that the plaintiffs-appellants had always been ready and "Willing to perform their part of the contract. The suit was con- R. c. CHANDIOK v. CHUN! LAL (Grover, I.) fi77 A tested by the defendants-respondents and among the mat~rial issues which were framed by the trial court were. the followmg_: " ( 5) Whether the specific perfonnance of the (b) agreement· in suit should be refused u/ s 21 or 22 9f the Specific Relief Act ? Whether the plaintiffs were ready and willing to perfonn their part of the con- tract?" The admitted case of the parties was that according to the condiC tions of the lease granted to the respondents, which had, however, not been produced the transfer of the lease-hold rights could be effecied only with the sanction of the Rehabilitation Ministry. The trial court was of the opinion that in spite of this condition the respondents had a subsisting though defeasible interest in the lease-hold rights which could very well be the subject matter of sale. lt was held that the appellants did not perform the contract for about 1 t years even though the respondents had repudiated it much earlier. Any party to the contract could subsequently make time the essence of the contract by a reasonable notice and this had been done by the respondents by Exhibits P-8 and P-12, namely the letters dated June 15, 1955 and August 24, 1956. Issue No. 5 was thus decided against the appellants. On issue No. 6 the trial court found that ihe appellants were noi ready and willing to pay the balance of consideration in accordance with the original agreement as they insisted on sanction of the Rehabi­ litation Ministry being obtained before the completion of sale though no such condition existed in the.original contraci. How­ ever, a decree was granted to the appellants in the sum of Rs. 7 ,500 I - on the ground that the same constituted part paymeint of consideration and was not liable to be forfeited. On March. 31, 1959 the appellanis filed an application before the trial court stating that they intended to prefer an app.eal against the dismissal of the suit for specific performance but as the respondents were !~ing !o dispose o~ the plot they should be ~U:ained by an m1unc!Jon from domg so. It appears that no m1unction was granted by the court. An appeal was filed to the High Court and during the pendency of the appeal, the amount of Rs. 7,500/­ was deposited by the respondents in satisfaction of the decree· passed by the trial court. According to the respondents th• appellants had taken out execution of the decree and it was for that rea~on thai the said amount was deposited. It was not, how­ ever, withdrawn by the appellants during the pend.ency of the appeal. The High Court found that both the respondents were bound by the letter Exhibit P-7 dated August 11, 1955 to which reference .has already been made. It was noticed that sanction of the .Rehabilitation Ministry was required before the sale could be completed but it was held that there was nothing to indicate that the absence of such a sanction invalidated the transfer ab initio .or rendered it void. In agreement with the trial court the High Court held that even a d.efeasible interest cou1d be the subject .matter of sale; in other words the sale could be effected without the sanction· having been previously obtained. The view of the High Court was that Exhibit P-7 did not contain any such lan­ guage which would justify the importing of a condition that until the respondents obtained sanction for the transfer of the property the appellants were not bound to get the sale completed. It was also decided that the appellants had not satisfactorily shown that they had sufficient funds to pay the · balance amount of Rs. 15,000/- from which it could be concluded that they were not ready and willing to perform their part of the contract. Yet another point was decided against the appellants on the basis o{ certain execution proceedings stated at the Bar to have been taken during the pendency of the appeal. According to the High Court once the appellants had obtained satisfaction of the decree for Rs. 7,500/- they became disentitled to a decree for specific per­ formance. We are unable to concur with the reasoning or the conclu­ sions of the High Court on the above maih points. It is signi­ ficant that the lease deed was not executed in favour of the res­ pondents by the Government until April 21, 1956. So long as their own title was incomplete there was no question of the sale being completed. It is- also undisputed that according to the conditions of the lease the respondents were bound to obtain the sanction of the Rehabilitation Ministry transferring the plot to any one else. The respondents were fully aware and conscious ·of this situation much earlier and that is the reasQn why ·on August 11, 1955 it was agreed while extending the period for execution of the sale. deed that the same shall be got executed after receipt of the sanction. The sa!ement contained in Exhibit P-7 that the execution of the sale deed "by us cannot be complete without the said sanction" was unqualified and unequi­ vocal. The respondents further undertook to inform the appel­ lants as soon as sanction was received and thereafter the sale 1 deed had to be executed withiJl; a week and got re~istered on pay­ ment of the balance amount of consideration. We are wholly unable to understand how in the presence of Exhibit P-7 it was possible to hold that the appellants were bound to get the sale completed even before any information was received from the respondents about the sanction having been obtained. It is quite obvious from the letter Exhibit P-8 dated June 15, 1956 that the Tespondents were having second thoughts and wanted to wriggle II ]1 R. c. CHANDIOK v. CHUN! LAL (Grover, J.) 579 out of the agreement because presumably they wanted to transfer it for better consideration to some one else or to transfer it in favour of their own relation as is stated to have been done later. The respondents never appliea ·for any sanction aft11r August 11, 1955 and took up the position that they wiife not,JJrepared to wait indefinitely in the matter and were therefore oi.acelling the agreement "for want of certainty". We are completely at a loss to understand this attitude Jk!r has any light been thrown on the uncertainty contemplated fir the aforesaid letter. It · does not appear that there would have been any difficulty in obtaining the sanction if the respondents had made any attempt lo obtain it. This is obvious from the fact that when they actuaily applied for sanction ein November 11, 1956 it was granted after a week. The statement contained in Exhibit P-10 dated July 4, 1956 that the sanction was not forthcoming has not been subs­ tantiated by any cogent evidence as no document was placed on the record to show that any attempt was made to obtain sanction prior to November 11, 1956. Be that as it may the respondents could not call upon the appellants to complete the sale and pay the balance money until the undertaking . given in Exhibit. p, 7 dated August 11, 1955 had be.en fulfilled by them. The sanction was given in November, 1956 and even then the respondents did not inform the appellants about it so as to enable them to per­ form their part of the agreement of sale. There was no question of time having ever been made the essence of the contract by the letters sent by the respondents nor could it be said that the appel­ lants had failed to perform their part of the agreement within a reasonable time. On behalf of the respondents it has been urged that in spite of the letters of the respondent by which the agreement had been cancelled the appellants did not treat the agreement of sale as having come to an end and kept it alive. They were therefore bound to send a draft of the conveyance and cail upon the respon­ dents to execute the sale deed and get it registered on payment of the balance of the sale price as soon as they c.ame t6 know directly from the Housing and Rent Officer that sanction had been granted. This they failed to do and it must be inferred that they were not ready and willing to perform their part of the agreement. Our attention has been invited to a statement in Halsbury's Laws of England, Vol. 34, Third Edn. at page 338 that in the absenee of agreement to the contrary it is the purchaser who has to prepare the draft conveyance and submit it to the vendor for approval. No such point was raised at any prior stage and in any case we do not consider that after the cancellation of the agreement by the respon­ dents it was necessary or incumbent on the appellants to !lend any ,draft conveyance. The very fact that they prompdy ~ die suit shows their keenness and readiness in the matter of acquiring the plot by purchase. It must be remembered that the appellants had not only put in an ndvertisement in newspapers ~bout the existence of the agreement but had also sent a letter Exhibit P-13 on Sep­ tember 12, J 956 declaring their readiness and willingness to pay the balance of the purchase price on the respondents procuring the sanction. The appellants further made enquiries directly from the authorities concerned about the sanction. Readiness and willing­ ness· cannot be treat.ed as a straight jacket formula. These have to be determined from the entirety of facts and circumstances relevant to 1;1e intention and conduct of the party concerned. In our judg­ ment there was nothing to indicate that the appeilants at any stage were not ready and willing to perform their part of the contract. The High Court had taken another aspect of readiness and willing­ ness into consideration, namely, the possession of sufficient funds by the appellants at the material time for payment of the balance of the sale price. Ramesh Chand P.W.6 had stated that his father was a Head Master since.1922 in <1 High School and he was also doing import business. He gave Gp service in 1934. The son joined the father in his business in the year 1928 and his other brother appel­ lant No. 2 also join.ed that business some years ago. The bank account was produced which showed that between July 18, 1955 and December 31, 1955 the appellants' father had in his account a credit of over Rs. 15,000/- but thereafter between January, 1956 and March, 1956 an amount of Rs. 15,000/- odd had been with­ drawn. According to the High Court after these dates there was nothing to show that the appellants had any funds. The evidence of Romesh Chand P .W. 6 that the family had ;tn amount Gf Rs. 40,000/- lying at their house was not believed. Now in the first place the relevant period for determining whether the appel­ lants were in a position to pay the balance of the sale price was after November, 1956 when sanction had obtained by the respondents for transfer of the plot from the Rehabilitation Minis­ try. The appellants had admittedly paid without any difficult Rs. 7 ,500 I - as earnest money and the bank account of the father showed various credit and debit entries from time to time. On March 5, 1956 an amount of Rs. 12,720/- had been withdrawn by a cheque in favour of Romesh Chand P.W. 6. According to his statement this amount was withdrawn because his father was very ill and it was decided to withdraw the amount at that time. It was deposited with his mother and remained with her throughout. There is no material or evidence to show that this amount had been expended or spent and that the statement of Romesh Chand was false on 1he point. Even if the version .that Rs. 40,000/- in cash were lying at the house of the appellant is discarded at least an amount of Rs. 12,720/- must have been available at the material and relevant time. The appellants were A. Do j. ' ' ' .. ,. } ~"""' 8 R. c. CHANDIOK v. CHUN! LAL (Grover, !.) 581 carrying on business and there is nothing to indicate that they \Vere not in a position to arrange for the remaining sum te make up the total of Rs. 15,000/-. We are, therefore, unable to accept that the appellants, who had all along been trying their utmost to pur­ chase the plot, did not have the necessary funds or could not arrange for them when the sale aeed had to be executed and regis­ tered after the sanction had been obtained. Coming to the last point, the High Court has held that the appellants were disentitled to a decree for specific performance because a statement was made· at the Bar that during the pendency of the appeal they had executed the decree of the trial court and an amount of Rs. 7,500/- had been deposited by the respondents pursuant to the execution proceedings. It is true that the appel­ lant could not accept satisfaction of the decree of the trial court and yet prefer an appeal against that decree. That may well haYe brought them within the principle that when the plaintiff has elected to proceed in some other manner than for specific perform- ance he cannot ask for the latter relief. This is what Scrutton L. J. said in Dexters, Limited v. Hill Crest Oil Company BradfoJ"d Ltd.(') at page 358 : "So, in my opinion, you cannot take the benefit of a judgment as being good and then appeal against it as being bad." £ It was further observed : "It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right." This illustrates the rule that a party cannot approbate and· repro­ bate at the same time. These propositions are so well known that no possible exception can be taken to them. In the present case, however, the above rule cannot apply because the appellants had, by consistent and unequivocal conduct, made it clear that they were not willing to accept the judgment of the trial court as correct. It has already been mentioned at a previous stage that after the decision of the trial court the appellants had even applied O'l March 31, 1958 for an injunction restraining the respondents from selling or otijerwise disposing of the plot as it was apprehend­ e~ that they were trying to do so. It was stated in this applica­ tion that the plaintiffs would be preferring an appeal but it would take time to secure certified copies. An appeal was in fact preferred and seriously pressed before the High Court on the relief relating to specific performance. ff· ;t926] I K.B. 348, 358. JO-L436Slp.Cli71 582 SUPREME COURT REPORTS [1971I2 S.C.R. This relief is discretionary but not arbitrary and discretion must be exercised ·in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the appellants, which is always an important element for considera­ tion, was such that it p1 -eluded them from obtaining a decree for specific performance. • It is common ground that the plot in dispute has been trans­ ferred by the respondents r ·,d therefore the proper form of the decree would be the sa·m..: ;, , indicated at page 369 in Lala Durga Prasad & Another v. Lala Deep Chand & Others(') viz., "to direct specific performance of the contract between the vendor and the plaintiff and direct the s'<Jsequent transferee to join in the con­ veyance so as to pass on the ;tie which resides in him to the plain­ tiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff". We order accordingly. The decree of the courts below is hereby set aside and the appeal is allowed with costs in this Court and the High Court. V.PS Appeal allowed. (l) [195+] S.C.R. 3£0.