Bhagabati Prasad Banerjee, J.@mdashThis is an appeal against the judgment and decree dated December 23, 1985, passed by the learned Third Addl. District Judge, Alipore, in Title Suit No. 244 of 1980 dismissing the suit filed by the Plaintiff/Appellant for specific performance of a contract.
2. The facts of the case briefly are as follows:
The Defendant Respondent is the owner of the premises No. 30, Gariahata Road, South, Calcutta, and an agreement was entered into by and between the parties on October 24, 1977, by which the Defendant/Respondent agreed to transfer the suit property in favour of the Plaintiff/Appellant or his nominee at a consideration of a sum of Rs. 9 lakhs in all, subject to actual measurement and, in any event, it is found that the land would be less that 28 cottas, the price would be reduced proportionately. The manners in which the payment should be made under the agreement were as follows:
(a) Rs. 25,000 was to be paid at the time of execution of the agreement for sale ;
(b) Rs. 4 lakhs was to be paid within five months from the date of execution of the agreement ;
(c) the balance was to be paid at the time of conclusion of purchase.
3. The other provisions of the agreement which are relevant for the purpose of determination of the dispute, are as follows:
The Vendor shall within three days from the date hereof deliver to the purchaser''s Advocate Shri Pronab Ghosh on his accountable receipt of all the documents of title in her possession and Municipal Rate Bills relating to the said property for investigation of title on behalf of the purchaser.
The Vendor shall make out a marketable title to the said property free from all encumbrances whatsoever and for that purpose answer and comply with all reasonable requisitions in respect of the title to the said property as may be made by the purchaser''s Advocate. The requisition-on-title shall be made within three weeks from the date of delivery of the title deeds to the purchaser''s Advocate as aforesaid and the Vendor shall answer the rcquisilions-on-title within three weeks from the dale of receipt thereof. Upon receipt of the answers to the requisitions-on-title the purchaser''s advocate shall inform the Vendor''s Advocate about the title being accepted by the purchaser subject only to the results of searches and shall at the same time send to the Vendor''s Advocate draft of the proposed conveyance in order to enable the Vender to apply for and obtain the income tax clearance certificate u/s 230A(1) of the Incom-tax Act and for permission from the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976.
The Vender shall, if necessary, upon receipt of the draft conveyance apply for income tax Clearance Certificate u/s 230A(1) of the Income-lax Act, 1956 and the permission under the Urban Land (Ceiling and Regulation) Act, 1976, and as soon as the said income tax Clearance Certificate and the permission shall be obtained shall send the same to the purchaser''s Advocate for inspection and the purchase shall be completed within nine months from date hereof, time being the essence of the contract. And it is further agreed that if ultimately the conveyance has to be executed in favour of a Co-operative Housing Society to be initiated by the said P.R. Deb and Associates as nominee of the said purchaser herein and a further agreement may be entered into between the promotor of that Housing Society and the Vendor and the said agreement be registered at the office of the District Regustrar at Alipore, 24-Parganas, and the Vendor shall have to give necessary consent letter to the Co-operative Housing Society to the effect that she has agreed to sell the land and buildings thereon to the Co-operative Housing Society.
On the Vendor''s making out a marketable title to the said property free from all encumbrances whatsoever and on her complying with the obligations under this agreement, if the purchaser fails to complete the purchase within the lime and in the manner hereinbefore mentioned, the Vendor thereupon shall have the full power of rescinding this agreement by giving notice in writing to the purchaser of its said Advocate and the said earnest money of Rs. 25.000 shall in that event stand absolutely forfeited by the Vendor and by way of liquidated damages and the Vendor shall have further rights to sue the purchaser for specific performance of this agreement and for other reliefs.
It is clearly understood and agreed that further payment of Rs. 4 lakhs will not be treated as earnest money for the operation of this clause. In case the transaction fails through the said sum of Rs. 4,00,000 has to be refunded forthwith.
If the Vendor fails to carry out her obligations, under this agreement or, if on the making out of a marketable title to the said property by the Vendor, the Vendor fails to complete the sale, the purchaser may thereupon sue the Vendor for specific performance of this agreement and for other reliefs or at his option may rescind this agreement and sue her for refund of the earnest money of Rs. 25,000 this day paid by the purchaser to the Vendor and also the said sum of Rs. 4,00,000 with interest thereon @ 8 per cent per annum and all costs and expenses that the purchaser may incur or be put to by reason of such failure on the part of the Vendor.
4. Along with the execution of the agreement a sum of Rs. 25,000 was paid. Thereafter, the sum of Rs. 4 lakhs which was due to be paid for five months from the date of the execution, was not admittedly paid and, according to the Defendant/ Respondent, the Plaintiff/Appellant had failed and neglected to pay the said sum of Rs. 4 lakhs which was one of the essential conditions of the agreement and, as such, the agreement stood terminated.
5. The Plaintiff/Appellant''s case is that the Plaintiff was ready willing to pay the said sum of Rs. 4 lakhs within the stipulated time, as Clause 11 of the agreement clearly provided that if ultimately the conveyance has to be executed in favour of a Co-operative Housing Society, as nominee of the said purchaser mentioned in the said agreement, a further agreement had been entered into between, the promoter of that Housing Society and the Defendant/Respondent and that the Defendant had to give necessary consent letter to the Co-operative Housing society to the effect that she had agreed to sell the land and buildings thereon to the Co-operative Housing Society. It is the case of the Plaintiff/Appellant that the Defendant/Respondent refused to give any consent letter which was demanded by the Plaintiff/ Appellant which was necessary for that purpose and, as the Defendant/Respondent had committed a breach of provision of Clause 11 of the agreement, the said sum of Rs. 4 lakhs could not be paid, inasmuch as, unless the consent letter is given, the Cooperative Society could not be formed and money could not be raised for the purpose of such payment. Further the case of the Plaintiff/Appellant is that the Plaintiff/Appellant was all along ready and willing to complete the agreement in terms of the said agreement and for that purpose the Plaintiff had made all arrangements for being a Co-operative Housing Society under the name of Anirban Co-operative Housing Society Ltd. It is stated that the Defendant/Respondent did not take any responsibility for not signing the consent letter. It is further alleged that Sri Pronab Ghosh, Solicitor who was entrusted for the purpose of conveyance'' in favour of the Plaintiff company, had several sittings with the Solicitor of M/s. P.D. Himatsingka and Co. and it is stated that several sittings between two Solicitors had taken place and ultimately it was settled that the Plaintiff/Appellant would pay a further sum of Rs. 25,000 and will sent a draft deed of further agreement as required under Clause 11 of the said agreement and, as a matter of fact, the Plaintiff/Appellant through his. Solicitor Mr. P.K. Ghosh sent a further draft agreement for sale between Anirban Co-operative Housing Society Ltd. and the Defendant/ Respondent as well as a sum of Rs. 25,000 by cheque drawn, on Indian Bank Ltd. to the Solicitor of M/s. P.D. Himatsingka and Co. and, admittedly, the draft and a cheque for Rs. 25,000 were accepted by the Solicitor of the Defendant/Respondent which was handed over to the Defendant. This has not been disputed. The facts of sending and acceptance of draft agreement through the Solicitor and acceptance of a cheque for Rs. 25,000 are all admitted. It is the case of the Plaintiff that even after the acceptance of the said draft and the cheque, nothing was done by the Defendant/ Respondent for the purpose of signing the said agreement.
Thereafter, on November 1980, the Plaintiff/Appellant came to know that the Defendant/Respondent was trying to sell the property to some other persons who filed the instant suit. In the suit on behalf of the Plaintiff/Appellant Pulak Ranjan Deb (P.W. 1), Pronab Ghosh (P.W. 2) and Ahindra Das (P.W. 3) deposed and on behalf of the Defendant/Respondent, the Defendant''s husband S.B. Roy (D.W. 1) deposed. There are several letters and documents those were exhibited in the said suit. One of the relevant exhibits is exhibit 2(a). This is a letter dated September 25, 1980, written by the Solicitor of the Plaintiff/Appellant to M/s. P.D. Himatsingka and Co. in which it was, inter alia, stated that before the time to make payment of the said sum of Rs. 4 lakhs expired, the Plaintiffs representative approached the husband of the Defendant/ Respondent to enter into a further agreement for sale before the said proposed Co-operative Society and that the Solicitor of the Plaintiff/Appellant had more than three sittings with the husband of the Defendant at the office of M/s. P.D. Himatsingka and Co. and it was alleged that the Defendant/Respondent''s stand was that unless the sum of Rs. 4 lakhs would be paid, the Vendor would not execute a fresh agreement for sale in terms of the clause as stated above and thereafter the Defendant/Respondent agreed to sign the agreement for sale on payment of a sum of Rs. 25,000. It was further stated that the said draft and Rs. 25,000 by cheque were sent, but thereafter no attempt was made to sign the said agreement and, on the contrary, it was stated that the Defendant had in violation of the provisions of the agreement let out various portions of the said premises to tenants which were vacant at the time of execution of the said agreement under which the Defendant/Respondent was not entitled to induct a new tenant. In the agreement the names of the existing tenants were set out with the undertaking not to induct a fresh tenant. In the said letter it was further stated that the said agreement should be completed by October 21, 1978, and it was stated that after the said agreement was signed, the said sum of Rs. 4 lakhs would be paid within four months therefrom and it was specifically stated that unless the said agreement was signed, it was not possible for the Respondent to collect the money by forming the Co-operative Society. This letter was admitted and the contents thereof were not controverted. Exhibit 2(b) produced on behalf of the Plaintiff shows that by the letter dated June 5, 1978, the Solicitor of the Plaintiff/Appellant addressed a letter to the Solicitor of the Defendant/Respondent forwarding a draft agreement along with the cheque for Rs. 25,000 drawn on Indian Bank Ltd. dated June 6, 1978. the said exhibit also indicates that the same was received by the Solicitor of the Defendant/Respondent. Exhibit, 2(c) is the letter from the Solicitor of the Defendant/Respondent addressed to the Solicitor of the Plaintiff/Appellant dated April. 12, 1978. By this letter it was slated that the said sum of Rs. 4 lakhs as part payment of the part consideration was not paid within time and by the said letter the Solicitor of the Defendant/Respondent requested the Plaintiff/Appellant to pay to the Defendant/Respondent the said sum of Rs. 4 lakhs in terms of the said agreement within senen days from the date of receipt of the said letter, failing which steps should be taken in the matter. The other exhibits were, application filed before the Registrar, Co-operative Housing Society for registering the said Co-operative Society in accordance with law giving the names of some of the members and affidavit affirmed by some of the members which was required to be filed for the purpose of inviting member for promoter fo Co-operative Housing Society. Several affidavits were also exhibited in 4 series. Exhibit 5 series are certain advertisements on newspaper published on December 18, 1977, January 1, 1978, January 22, 1978, March 5, 1978, May 28, 1978, June 11, 1978, July 23, 1978, November 12 1978, inviting applications from proposed members for booking flats and proposed Co-operative Housing Society.
6. The defence case was that because of the default committed by the Plaintiff/Appellant in the matter of payment of the sum of Rs. 4 lakhs within the time stipulated, the said agreement stood terminated and that on the basis of the evidence it was alleged that the Plaintiff/Appellant was never ready and willing to perform his part of the contract. It was alleged that money was not paid in terms of the said agreement. It was also alleged that the Defendant/Respondent never agreed through the Solicitor to execute the said agreement for sale in favour of the said Cooperative Society after accepting the sum of Rs. 25,000 only and that, under such circumstances, the agreement for sale could not be enforced. In the suit several issues were framed. The Court below by the judgment and decree dated December 23, 1985, held that the Plaintiff/Appellant failed to perform his part in terms of the agreement and that on the basis of the evidence of the plaaintiff/Appellant that the parties through their Solicitor further agreed to execute a fresh agreement in the name of the Co-operative Society and to pay further sum of Rs. 25,000, but no subsequent agreement was agreed between the parties and the Plaintiff/Appellant failed to prove the further acceptance of Rs. 25,000, and under such circumstances, the Plaintiff/Appellant was not entitled to specific performance of the contract on the basis of the previous agreement. The Court below held that the Plaintiff/Appellant was not entitled to a decree for specific performance of contract, but the Plaintiff/Appellant was entitled to get refund of the earnest money of Rs. 25,000 which was already accepted by the Defendant/Respondent as also to get refund of further sum of Rs. 25,000 which was subsequently advanced by the Plaintiff/ Appellant to the Defendant/Respondent by cheque, in case the said cheque had not been encashed.
7. Mr. Mani Bhusan Sarkar, learned Advocate appearing on behalf of the Plaintiff/Appellant, submitted in the first place that the condition of payment of Rs. 4,00,000 within the specified time cannot be said to be the only condition for violation of which the contract should fail and could not be enforced. Mr. Sarkar submitted that the Court below had failed to appreciate that the contract remains valid so long as it is not rescinded by giving notice as specifically provided in Clause 13 of the said agreement. Mr. Sarkar also submitted that when the Vendor/Respondent had chosen not to rescind the agreement, by giving notice as required under the agreement, the Vendor cannot contend that the said contract cannot be enforced when she had elected not to rescind the contract on his own volition. Mr. Sarkar further submitted that the Court below was wrong in construing that the payment of Rs. 4,00,000 was independent of any other conditions and that, in the instant case, admittedly the Vendor had failed and neglected to comply with the conditions laid down in Clause 11 of the agreement under which the Vendor was under obligation. to issue necessary consent letter for the purpose of Co-operative Housing Society and that it was submitted that failure on the part of the Vendor in performing her part under Clause 11 of the agreement disentitled the Vendor from getting any relief in the equitable jurisdiction. It was submitted that the Court below was wholly wrong in holding that for failure of payment of Rs. 4,00,000 the contract would automatically stand terminated and the said non-payment indicated that the Appellant was not in a position to pay money. Mr. Sarkar submitted that while construing the provisions of the contract, the contract has to be construed as a whole and that only one clause of the agreement could not be said to be a fundamental clause and others are all non-fundamental. Mr. Sarkar submitted that giving of consent to the Co-operative Society required under Clause 11 of the said agreement has to be construed strictly in favour of the Vendee and that non-compliance of the said condition had resulted in non-payment of the money in question and when the Vendor was responsible for bringing about this situation, the equitable relief by way of specific performance of the agreement could not be denied to the Appellant. Mr. Sarkar also submitted that, in the instant case, this is not in evidence that the Vendor had been able to show that the title was marketable. It was submitted that, under such circumstances, the condition of payment of that amount cannot be read in isolation to the other clauses of the agreement. It was further submitted that when the said sum of Rs. 4,00,000 was a part of the consideration money, the same cannot be said to be due and payable before the title is made marketable and before the Vendor has complied her obligation under the agreement, particularly Clause 11 of the said agreement. It was further submitted that long after the due date the Vendor/Defendant had accepted the cheque of Rs. 25,000 along with a draft agreement to give effect to the provisions, of Clause 11 of the said agreement clearly indicated that time was no longer the essence of contract and that the time for payment of Rs. 4,00,000 was also not the essence of contract. Mr. Sarkar also referred to various exhibits to show that the Plaintiff/ Appellant had taken steps to constitute the Co-operative Society in accordance with law, and for that purpose spent huge money, and because of failure on the part of the Vendor/Defendant, the said money cannot be paid, and when the said money cannot be paid because of a situation brought about by the Vendor, the Vendor cannot take advantage of her own mistake. The acceptance of a fresh cheque for Rs. 25,000 along with a draft agreement by the Vendor created an estoppel against the Vendor from contending that the agreement had been terminated on account of failure on the part of the Plaintiff/Appellant in fulfilling the condition of the agreement.
8. Reference was made to a decision of Rajasthan High Court in the case of
From a reading of Section 12 of the Specific Relief Act and the explanation to the section, a presumption arises under the law that, unless and until the contrary is proved, the Court shall presume that compensation in money cannot adequately relieve a breach of a contract to transfer immovable property. The question whether there is proof to the contract as envisaged in the explanation, showing that a contract to transfer immoveable property can be adequately relieved, is essentially a question of fact, which has to be proved by the party pleading it. Unless such a plea is specifically taken, a contract for transfer of immoveable property ought to be specifically enforced unless there is anything to rebut the presumption that it could not be adequately relieved by compensation in money. In that case it was further held that
Ordinarily, in the absence of an agreement to the contrary, time is not of the essence of a contract for sale of immoveable property and there is nothing wrong if the Plaintiff exercises his right to claim specific performance within the period of limitation prescribed by the law. Where the plea of laches amounting to waiver or abandonment or acquiescence on the part of the Plaintiff is not taken by the Defendant, or that the delay caused any prejudice or hardship to him, no adverse inferences against the Plaintiff can be drawn merely because of the delay in applying for specific performance. The view expressed by P.N. Shinghal, J. is well-settled, and such a view could not be disputed.
9. On the basis of this decision it was submitted by Mr. Sarkar that, in the facts and circumstances of the case, the Court below applied the law on this subject wrongly and also did hot consider the evidence on record. Mr. Sarkar submitted that, as the condition of grant of stay in terms of the order passed by this Court, a sum of Rs. 1 lakh had already been deposited with the Registrar of this Court. Mr. Sarkar submitted that in the absence of any explanation for accepting the further cheque of Rs. 25,000 along with a draft agreement as admitted by the Defendant, the Defendant was bound to fulfil her part under the agreement. It was submitted that the Defendant could not be allowed to be enriched at the costs of the Plaintiff and it was further submitted that the Defendant from the very beginning started violating the conditions of the agreement unilaterally, particularly the agreement provided that after the agreement is entered into, no further tenancy should be created. But as a matter of fact it is an admitted position that during the continuance of the agreement, the defendant had inducted several tenants to the prejudice of the Vendee. Mr. Sarkar submitted that, in the facts and circumstances of the case, the Court below was bound to decree the suit by directing the specific performance of the contract.
10. On behalf of the Respondent Mr. Mukul Prokash Banerjee submitted that payment of the said sum of Rs. 4,00,000 was an essential term of contract and that when the Plaintiff had failed to pay that amount, the Plaintiff was not entitled to any relief. Secondly, it was submitted that the Plaintiff had failed to prove that the Plaintiff was ready and willing to perform his part under the contract. Thirdly, it was submitted that unless the Co-operative Society is formed in accordance with law, the question of compliance of Clause 11 did not and could not arise and, in the facts and circumstances of the case, the Defendant cannot be said to have acted in contravention of Clause 11 of the said agreement. Fourthly, it was submitted that the suit was barred because of the provisions of Sections 3 and 4 of the Benami Transaction Act, inasmuch as it was submitted that, in the instant case, the Plaintiff wanted to purchase the property in the name of the Co-operative Society which is prohibited. Fifthly, it was submitted that the suit was not maintainable in the name of the Plaintiff M/s. P.R. Deb and Associates, inasmuch as it is an unincorporated body. Mr. Banerjee also relied on a decision of this Court in the case of
11. Specific performance of a contract is an equitable remedy. The court of equity compels the execution in specie of a contract which requires some definite things to be done in order that legal right of the parties is settled and defined in the manner intended. Generally, the specific performance will not be ordered unless the subsisting contract enforceable at law is established. Historical finding of equitable jurisdiction in granting decree for specific performance of a contract is that the party speaking it cannot obtain sufficient remedy by way of damages where damages are found to be adequate remedy. In such a case, instead of specific performance of a contract damages are awarded when there are admitted breach. There are various factors which are to be taken into consideration before passing a decree for specific performance of a contract. In such a case the contract has to be construed as a whole and to find out what was the intention of the parties, particularly the mode agreed upon by the parties. If it is found that the contract is otherwise lawful and capable of being enforced, the parties also may agree to the terms and conditions under which the contract may be terminable at will. Admittedly, in the instant case, the party agrees about the modes of payment of money under the agreement and, admittedly, the initial money by way of earnest money had been paid. Admittedly, within the period of five months from the date of execution of the agreement, a sum of Rs. 4 lakhs out of the balance amount of Rs. 8,75,000 was not paid. The question is whether due to non-payment of this sum, the contract stands repudiated or stands annulled or not. The manner of payment and the time in which money has to be paid, is one of the conditions of the contract. But it was also a condition of the contract (clause 11) that if it was agreed that the conveyance had to be executed in favour of the Co-operative Housing Society, in that event, a further agreement had to be entered into by the Promoter of the Housing Society, namely, the Plaintiff/Appellant herein and the Vendor, namely, the Defendant/Respondent and that it is also provided in Clause 11 that the Defendant/Vendor had to give necessary consent letter to the Co-operative Housing Society to the effect that she had agreed to sell the land and building to the said Co-operative Housing Society. The learned trial Judge simply held that failure to pay the sum of Rs. 4 lakhs was sufficient to disentitle the Plaintiff/Appellant from getting any relief and that the said payment was not conditional but independent of any other provisions of the contract. In our view, when the Court has to decide whether or not a party was guilty of breach of, contract, the contract has to be construed and considered as a whole. There may be cases where one of the parties of the contract may be guilty of violating of one particular clause, but the other party may equally be guilty for violating the other provisions of the contract. In such a case, it is the duty of the Court to look into the substance and not merely the form of the contract to find out what was the real intention of the party and also to find out in such circumstances what was the intention of the party for repudiating and/or annulling the contract. In the instant case, while fixing the time scheduled for making payment it was only recorded payment scheduled is being made as the time was the essence of contract. From the conduct of the parties and from the letter written by the Defendant/Respondent''s Solicitor dated April 18, 1978, by which a demand of sum of Rs. 4 lakhs was made, makes it abundantly clear that the time was no longer the essence of contract. In a contract for sale of property payment of consideration money is not and cannot be the sole criteria. There are various other clauses which make it obligatory on the part of the Vendor/Defendant/Respondent to show that the title was free from decree and was marketable. The Court below has not considered the question whether the title was found to be marketable or not and whether the Defendant Vendor has complied her power under the agreement in question. Admittedly, it was on the question of issuing consent letter and entering into an agreement in terms of Clause 11 of the said contract. There was a dispute between the parties and ultimately from the evidence of Pronab Kumar Ghosh and from the exhibits it was clearly established that same disputes arose between the parties and pursuant to that settlement a fresh draft agreement was handed over to the Solicitor of the Vendor by the Solicitor of the Vendee along with a cheque for Rs. 25,000. The acceptance of the draft agreement and the cheque for Rs. 25,000 by the Defendant/Respondent has not been denied. There was no explanation forthcoming from the Defendant/Respondent why the matter was not concluded after the receipt of a further cheque of Rs. 25,000 along with a draft agreement. The evidence on record clearly established that there were several sittings between the Solicitors of the parties where the husband of the Defendant and the Plaintiff were present and ultimately the matter was settled. But the Defendant/Respondent backed out and there was no evidence on record and no explanation what was the reason for this situation. If the Defendant had no intention to give consent letter and/or to sign the agreement in terms of Clause 11 of the said contract, in that event, the Defendant should not have accepted the cheque for a further sum of Rs. 25,000 and not to refund the same. The agreement provided the manner and condition under which the contract may be rescinded by the Vendor. Clause 13 of the agreement clearly provided:
On the Vendor''s making out a marketable title to the said property free from all encumbrances whatsoever and on her complying with the obligations under this agreement, if the purchaser fails to complete the purchase within the lime and in the manner hereinbefore mentioned, the Vendor thereupon shall have the full power of rescinding this agreement by giving notice in writing to the purchaser or its said Advocate and the said earnest money of Rs: 25,000 shall in that event stand absolutely forfeited by the Vendor as and by way of liquidated damages and the Vendor shall have further rights to sue the purchaser for specific performance of this agreement and for other reliefs.
11A. If the parties to a contract agree with the manner and the circumstances under which the contract shall be rescinded, and if the parties do not rescind the agreement in terms of the said condition of the agreement which is also one of the essential conditions of a contract, the Court would pass order for specific performance of that contract. If the party under the contract voluntarily waives and/or relinquishes her right under the contract in the matter of rescinding the contract by her own voluntary acts, in that event, the party who had voluntarily abandoned right to rescind the contract under the agreement, cannot take a stand before the Court contrary to the stand which he had voluntarily abandoned and contained that the contract should be held to have been rescinded by the contract of the parties. In the instant case, the Defendant/Vendor had abandoned her right under the agreement, even assuming that there had some fundamental breach, in our view, it is not open to the party who had voluntarily abandoned her right, to take stand that irrespective of abandonment of her right under the agreement, the Court would not grant any relief to the other party. Where proceedings were brought for specific performance, it sometimes appears that either pursuant to a purported abandonment or otherwise a defence of acquiescence arises. This defence is sometimes referred to as an equitable estoppel. In the instant case, the principles of acquiescence is fully applicable, inasmuch as the acquiescence arises when in the first place there is an expressed or implied indication that the Vendor/Defendant did not intend to treat the contract rescinded and/or cancelled even if there was some breach on the part of the Plaintiff/ Appellant and that the Vendor was still ready and willing to fulfil the obligation in question. In our view, the Defendant/ Respondent was estopped on the principle of acquiescence from taking the stand before the Court that the said contract cannot be enforced against her. In case it was found by the Defendant/Respondent that he could avoid contract because of any latches and negligences on the part of the Plaintiff/Appellant, but instead of doing that party kept the contract alive indicating the intention clearly that the party was ready and willing to perform her part under the contract. It clearly indicates that a party who has two alternative courses of action and when elect one course discarding the other at a subsequent stage, he cannot adopt the course of action which he could voluntarily relinquishes. In Spencer Bower and Truner''s The. Law Relating to Estoppel by Representation (para. 319) it was observed that
The principle of allegation is applicable to the instrument and it may happen that one of two parties to an instrument in the course of his dealings with the other in pursuance of, or in relation to, that instrument, finds or thinks he has found, that it is voidable at his option as against such other party. Thereupon, it is open to him to take up one of two inconsistent attitudes ; he may either treat the instrument as void and not binding on him, or he may think it to his advantage, instead of exercising his right in this respect, to treat it as valid and subsisting. But if, by words or (as is usually the case) by conduct, he leads the other party to believe that he is definitely choosing the one course in preference to the other, and, in that relief, to alter his position for the worse, he is estopped, as against the other party, from afterwards approbating what he has thus reprobated, and reprobating what he has thus approbated.
12. In the instant case, in our view, when the Defendant/ Respondent had not invoked the provisions of Clause 13 of the agreement by not rescinding the agreement by giving notice in writing which was the only mode prescribed and agreed upon by the parties for rescinding the agreement, the agreement will remain binding upon the Respondent and the Defendant/ Respondent cannot take stand that the agreement stands rescinded even without serving of notice. The maxims that a Plaintiff in equity must approach the Court with clean hands and that he who seeks equity must do equity are often used in a purely theoretical manner in cases where the refusal of relief may better be justified on more precise grounds. Thus in many cases where the absence of clean hands is referred to may be explained by the presence of fraud, or misrepresentation or illegality; or a breach of contract leading to a lack of readiness or willingness-on the part of the Plaintiff to perform his obligations. No Court of equity will aid a man to derive advantage from his own wrong and this principle is applicable in the facts and circumstances of the case. There are circumstances under which the Court in its discretion may hold it to be unjust and unreasonable that the Plaintiff should obtain the relief which he seeks. In the instant case, the evidence on record clearly established that without any just cause, the Defendant/Respondent failed to act in terms of Clause 11 of the agreement which had caused impediment in the way of carrying out obligation to pay a sum of Rs. 4 lakhs to the Defendant/Respondent. The Court below had taken Clause 1 of the agreement as a paramount consideration and the breach of that clause was a fundamental breach. The provisions of other clauses were not considered and that the breach of Clause 1 cannot be said to be a fundamental breach whereas the breach of other clauses were not. From the evidence on record it is also clear that the Plaintiff/Appellant had done everything which he required for the purpose of promoting a co-operative society, but for, want of co-operation which the Defendant/Respondent required to do under Clause 11 of the agreement, the situation was brought about for which it cannot be said that the Plaintiff/Appellant was responsible for the breach of the contract and that he had committed a breach of contract.
13. In our view, considering the agreement as a whole and looking into the substance of the matter on evidence, the Court below was wrong in holding that the Plaintiff/Appellant was guilty of breach of contract and the Plaintiff/Appellant failed and neglected to purchase the property in question. The contention that the suit was not maintainable at the instance of the Plaintiff/Appellant has no substance, inasmuch as it is abundantly clear that the suit was brought by the Plaintiff in the capacity of the proprietory and such objection as to the maintainability of the suit in this ground was not abandoned. There were some mis-description of the cause title. But the cause title reading as a whole makes it abundantly clear that the suit was brought by Mr. P.R. Deb, Proprietor of M/s. P.R. Deb and Associates. This is a mere irregularity and, if the objection was taken before the Court below, in that event, the Plaintiff/Appellant would have amended the cause title. But because of this mere irregularity, the suit cannot be allowed to fail. It was not the case where the suit was filed by a person independent or unincorporated body had filed the suit. The contention of Mr. Banerjee that the suit is barred by the provisions of Sections 3 and 4 of the Benami Transaction Act is without substance, inasmuch as when the agreement made it abundantly clear that the property would be purchased either by the party or his nominee and if the Plaintiff asked the Defendant to execute the documents in favour of the nominee, it is not a case of any benami transaction. The element of benami transaction is wholly absent in the facts and circumstances of the case.
14. In the result, the judgment and decree passed by the Court below is set aside and the Plaintiff/Appellant is entitled to a decree for specific performance of the contract and the Defendant/Respondent is directed to execute the deed of conveyance in favour of the nominee of the Plaintiff as may be specified by the Plaintiff or in the name of the Plaintiff as the case may be on condition of payment of the balance amount with interest at the rate of 12 % per annum on a sum of Rs. 4,00,000 from April 1, 1978, i.e. after the expiry of the period of five months from the date of execution of the agreement and on the balance amount at the rate of 12 % per annum from November 10, 1980, i.e. from the date of filing of the suit within a period of three months from to day. The Appellant is given liberty to withdraw the money deposited in this Court for the purpose of making payment of the consideration money in terms of this order. In case the money in terms of this order is not paid within the time specified, in that event, the suit shall stand dismissed and there should not be any specific performance of the contract as directed. Money should be paid within three months and the documents should be executed within three months thereafter. This interest is awarded considering the fact that the value of the land had been increased and that when the party agreed to a particular price, the Court cannot vary the price. But at the same lime, if the money had been paid within due time, money would have earned interest. Considering the balance of convenience and to protect the interest of both the parties, order for payment of interest in this form is passed. Even though there was no prayer for interest and as it is an equitable remedy, the Court is imposing this condition to make good the loss of the Defendant/Respondent because of lapse of time, and that because of lapse of time one party cannot be allowed to be enriched at the cost of other.
15. The appeal is allowed without any order as to costs.
16. It is further ordered that if the document in question is not registered in terms of the order by the party, the Appellant will be at liberty to approach the Court below so that the Court below may issue orders for the purpose of execution of the documents by the Registrar of that Court on depositing the payment of money in terms of the order in accordance with law.
17. The appeal is accordingly allowed.
18. There will be, however, no order as to costs.
A.K. Bhattacharji, J.
I agree.
