P.N. Mookerjee, J.@mdashThis appeal arises out of a simple suit for specific performance of a contract of sale. The suit was instituted by the purchaser. It was decreed by the learned Subordinate Judge. The unsuccessful vendor Defendant has come up to this Court on appeal.
2. On July 7, 1944, the document, Ex. 1, was executed by the Appellant in favour of the Respondent. That document was described as a deed of agreement for sale of certain immovable properties mentioned in the schedule thereof. It stipulated inter alia for the sale of the said properties to the Respondent for a consideration of Rs. 22,000. It was recited in the said document that the said properties appertain to premises No. 83, Alipore Road and had been allotted to the Appellant under the final decree for partition in Title Suit No. 56 of 1938 of the first court of the Subordinate Judge at Alipore which decree was then under appeal to this Court at the instance of the Appellant''s brother Chandi Charan Saha. Under the document (Ex. 1), the sale, referred to above, was to be free from in cumbrances and defects and was to be completed within one month from the date of the Appellant''s taking separate possession of his demarcated share in the said premises No. 83, Alipore Road and it was also provided therein that if there were material or substantial modifications made by the High Court, the Respondent would not be bound to purchase the properties and that, in case of partial or minor modifications the Respondent would be entitled at his option "to make the purchase" at a "proportionately reduced" price. The document recited further the payment and receipt of earnest money of Rs. 801 and contained provision for further payments to the Appellant (vendor) out of the balance of the stipulated consideration upon the latter''s requiring the same and making appropriate endorsement on the back of the said document. In the document express provision was also made for specific performance at the instance of the purchaser upon the vendor''s default and forfeiture of the earnest money by the vendor is case of laches or negligence on the purchaser''s part.
3. In pursuance of the above terms various sums were paid by the Respondent to the Appellant on diverse dates beginning apparently from August 11, 1944, the last of such payments being dated May 5, 1948. The different amounts thus paid till the date last mentioned above came up to Rs. 4,200 which together with the earnest money of Rs. 801 amounted to a total sum of Rs. 5,001 received by the Appellant from the Respondent under the deed (Ex. 1). All these are admitted payments and are also borne out by appropriate endorsements on the deed (Ex. 1). These payments may be conveniently divided into two periods, one ending with February 13, 1946, and the other with May 5, 1948, already mentioned.
4. It appears, however, that on June 4, 1946, the Appellant through his lawyer expressed his unwillingness to sell the property to the Respondent and offered to pay back the moneys Received by him and desired cancellation of the "agreement for "sale". The reason given was that a much higher offer had been received by the Appellant. The Respondent did not agree, and on June 11, 1946, he replied through his lawyer expressing Surprise at the Appellant''s attitude and refusing to take back the (moneys and cancel the "agreement for sale." In that reply the Respondent insisted on due performance of the terms of the Agreement (Ex. 1) by the Appellant and wanted to know immediately when the latter would be in a position to complete the sale. On June 18, 1946, the Appellant again wrote through his lawyer to the Respondent appealing to the latter''s sense of "equity, justice and good conscience" and also to the Respondent''s "benevolence and magnanimity" and pleaded for cancellation of the ''agreement'' for sale upon refund of all moneys, paid by the Respondent to the Appellant and received by the latter under the agreement, together with interest at the rate of six per cent. per anrium. In this letter some faint allegations were made that the Appellant was in a "helpless "condition" at the time of the agreement for sale and entered into it without a proper understanding of his own act. These allegations were promptly denied by the Respondent in his lawyer''s letter dated June 24, 1946, and in this letter the Respondent affirmed the fairness of the price stipulated and of the terms of the agreement for sale (Ex. 1) which was then about two years old and had been acted upon by the parties from time to time as occasions had required. He deplored the Appellant''s attempt to evade the contract and demanded due performance of the said agreement for sale immediately after the decision of the Hon''ble High Court and delivery of possession by the lower court of the premises in question. This chapter came to a close with two other letters, one dated July 2 1946, from the Appellant, pleading for the cancellation of the agreement on refund of all moneys with interest, and the other dated July 13, 1946, from the Respondent, rejecting again the Appellant''s offer of refund with interest and demanding due performance of the contract (Ex. 1), and from July 26, 1946 the Appellant again began taking moneys from the Respondent upon the agreement for sale (Ex. 1) and this continued till May 5, 1948, as already stated.
5. The next chapter begins with the Respondent''s letter, dated June 21, 1948, stating inter alia that he had received information that the High Court appeal from the partition decree had been disposed of and requesting the Appellant to let him know whether he had taken possession from court so that the draft of the conveyance might be sent for his approval The Appellant''s reply is dated July 9, 1948, and there it was alleged for the first time that the transaction represented by the document (Ex. 1) was in reality a loan, the deed (Ex. 1) being the security for the repayment of the same. It was further alleged in the said reply that Ex. 1 was given "the shape of an "agreement for sale instead of a mortgage to circumvent the "provisions of the law relating to money-lending" and that the Appellant was coerced by the Respondent to enter into the said "unreal and unconscionable arrangement". In the said reply an offer was also made to repay the alleged loan "with interest "at eight per cent, per annum simple as per mutual under "standing". These new allegations were at once denied by the Respondent by his lawyer''s letter, dated July 16, 1948, which followed immediately and therein information was again sough as to whether the Appellant had obtained separate possession of his allotment through court so that the draft of the conveyance might be sent for his approval. There was further corresponded between the parties, the Appellant denying that there was any agreement for sale and asserting that the transaction between the parties was only a loan and offering repayment with interest and the Respondent maintaining that the deed (Ex. 1) was a real agreement for sale and insisting upon its performance and requesting the Appellant to let him know where the Appellant would be in a position to execute the conveyance in his favour in pursuance of the said agreement for sale. The last of these letters was written by the Appellant on July 31. 1948, refusing categorically to answer the Respondent''s queries on the question of his taking separate possession of his allotted portion of premises No. 83, Alipore Road, on the plea that such queries were wholly irrelevant as there was no agreement for sale but only a transaction of "pure and simple "loan" between the parties. This letter reached the Respondent on August 12, 1948, but meanwhile the Appellant had obtained possession on the 6th. The Respondent, accordingly, instituted the present suit for specific performance of the contract of sale, (Ex. 1) on August 26, 1948. In the suit there was also a prayer for in junction against the Appellant as the Respondent was apprehensive that the property might be fraudulently sold to some other person.
6. The plaint narrates in sufficient detail the events leading up to the suit and after a full and elaborate reference to the Plaintiff''s demands for completion of the sale in terms of the agreement (Ex. 1) and the Defendant''s refusal to do the same and denial of any agreement for sale it proceeds to state as follows:
In spite of being repeatedly requested to execute a deed of sale in favour of the Plaintiff, the Defendant having fraudulently and on being actuated by a wrongful greed refused to execute the kabala of sale in favour of the Plaintiff, the Plaintiff has been obliged to seek the protection of the court (vide para. 9 of the plaint).
7. And in prayer (Ka) a decree was sought "against the "Defendant for execution of a deed of sale in respect of the "properties in suit" in terms of the agreement for sale (Ex. 1) on payment and acceptance of the balance of the consideration money.
8. Various defences were raised to the suit denying inter alia that there was any agreement for sale between the parties, alleging; that the so-called agreement (Ex. 1) was in reality a loan transaction and alleging further that the suit was premature and that the case was one where a decree for specific performance ought not to be made, first, because the price was extremely inadequate and the transaction was unfair and unconscionable; secondly, because the performance of the alleged contract would involve hardship on the Defendant which he did not foresee, whereas its non-performance would involve no such hardship on the Plaintiff; and, thirdly, because the Plaintiff was not ready and willing all the time to perform his part of the contract and did not tender the balance of the price in cash at the proper time. All these defences were rejected by the learned Subordinate Judge who gave the Plaintiff a decree for specific performance and permitted him to satisfy a mortgage decree affecting the said property to make it free from in cumbrances and to deposit the balance in court. Under this permission, the Plaintiff has satisfied the mortgage decree and has deposited the balance of the consideration money in court.
9. The appeal was argued with considerable force by Mr. Mallick, but having given the matter our best consideration we are unable to hold that the decree passed by the learned Subordinate Judge is wrong and should be set aside. It ought to be stated here that Mr. Mallick fairly conceded that, having regard to the materials on record, he could not and would not contend that the document (Ex. 1) represented a loan transaction and was not an agreement for sale, but he urged strongly that the plaint should have been thrown out in limine as it disclosed no cause of action, there being no averment in it that the Plaintiff was ready and willing to perform the contract at all material times and that, in any event, the suit ought to have been dismissed as no such readiness and willingness on the part of the Plaintiff was even proved at the trial. He argued further that the contract (Ex. 1) was extremely one-sided and unfair, and was, therefore, not specifically enforceable u/s 22(I) of the Specific Relief Act. His last submission was that, at any rate, the contract was unenforceable u/s 22(II) of the Act in view of the unforeseen and unprecedented changes of circumstances brought about by the partition of the country, between the date of the agreement for sale and the time of its performance, resulting in an abnormal rise of land values. These were the points urged by Mr. Mallick and we shall now proceed to their consideration in the order in which they have been set out above.
Mr. Mallick''s first submission is in two parts�one based upon the plea of non-averment in the plaint of the Plaintiff''s readiness and willingness to perform the contract at all ^material times and the other founded on the argument that no such readiness and willingness, as above indicated, has been proved at the trial. In support of the first part of this submission, Mr. Mallick relied strongly upon the decision of the Judicial Committee in the well-known case of Ardeshir Mama v. Flora Sassoon ILR (1028) 52 Bam. 597 : L.R. 55 IndAp 360. It was, however, not contended and Mr. Mallick agreed, that the Judicial Committee did not lay down that it was necessary for the Plaintiff in a suit for specific performance to aver in the plaint in so many words that he was all along ready and willing to perform the contract. What was argued was that, under the law as laid down in Mama''s case and the numerous cases following the same, it was essential that the averments in the plaint, read as a whole, must disclose and disclose sufficiently such readiness and willingness on the part of the Plaintiff and unless, from the plaint, it appeared to be the Plaintiff''s case that he was at all material times ready and willing to perform the contract, the suit must fail in limine as a said for specific performance. To this proposition and reading of the case cited (viz., Ardhesir Mama v. Flora Sassoon Supra. Manik Chandra Bhowmik v. Abhoy Charon Gope (1913) 24 C.L.J. 90;
10. We have described, in an earlier part of this judgment, the events leading up to the present suit. The correspondence that passed between the parties before the filing of the suit has also been set out above in sufficient detail. The events and the nature of the correspondence leave no room for doubt as to the Plaintiff''s readiness and willingness to perform the contract. The plaint contains sufficient reference to and also relates in sufficient detail the said events and correspondence. In the face of this and para. 9 of the plaint, quoted above, and the terms of prayer (Ka), also sufficiently set out before, and bearing in mind the interpretation of the cases cited, as appearing in the preceding paragraph, it is impossible to hold that the plaint contains no sufficient averment of the Plaintiff''s readiness and willingness, as required under the law and under the said authorities. We, accordingly, reject the first part of Mr. Mallick''s first submission and hold that the plaint is not liable to be thrown out in limine.
11. The other branch of this submission is weaker still. The correspondence (Ex. 3 series) and the oral evidence of the parties themselves amply show that the Plaintiff was all along ready and willing to make the purchase. He was all through insisting that the sale be completed in terms of the agreement for sale (Ex. 1). The Defendant was trying to back out, sometimes begging to be relieved of the obligation under the said agreement, at others denying that there was any agreement for sale and pleading that the transaction was a loan, and the document (Ex. 1) was merely a deed of security. Even according to the Defendant, the Plaintiff offered him the balance of the consideration by pleader''s letter (vide the end of his cross-examination). That was how he understood the matter, and on that basis the parties proceeded. In the correspondence there is not the faintest suggestion that the Plaintiff was not ready and willing to perform the contract. The conduct of the parties clearly justifies the inference that the Plaintiff was always ready and willing to make the purchase in terms of the agreement for sale (Ex. 1) and that the Defendant was unwilling to complete the same as stipulated therein. The cross-examination of the Plaintiff was also apparently directed mainly to the question of actual tender of the balance of the purchase money. Unless, therefore, the position be that, in the absence of actual tender of the purchase money to the vendor, the purchaser must necessarily fail to prove the requisite readiness and willingness on his part even in cases where the vendor has repudiated the contract, it must be held, on the materials on record, that the Plaintiff was sufficiently ready and willing to perform his part under the agreement in suit, viz., Ex. 1. In a case where the vendor has repudiated the contract, it is well established that the strict law of tender would not apply. In such a case the actual tender of the price would be a useless, meaningless and idle formality. Vide, in this connection, Chalikani Venkatarayanim v. Zamindar of Tuni ILR (1922) 46 Mad. 108, 113 : L.R. 50 IndAp 41, 45, and the Bombay decision in the case of
12. It is only necessary to mention here that the two other cases cited by Mr. Mallick on this part of the case, viz, S. Sabapathi Pillay v. Vanmdholinga Pillay ILR (1913) 38 Mad. 959. and Ramjoo Mahomed v. Haridas Mullick ILR (1925) 52 Cal. 695, deal with essentially different (questions and are no authorities for any of the two branches of Mr. Mallick''s first submission. We may also point out that the Mew which we have taken above is not opposed to the statement of the law as contained in vol. 31, para. 504 at p. 421 of Halsbury''s Laws of England, Hailsham Ed., already cited, whether taken by itself, as discussed before, or taken along with para. 541 at pp. 393 and 394 of vol. 29 of the same anthority to which also Mr. Mallick drew out attention in the course of argument. Upon these two paragraphs Mr. Mallick sought to argue that, even where the contract had been repudiated by the vendor, the purchaser, if he sued for specific performance, must allege and prove that he was all along ready and willing to perform the contract although in a suit merely for damages such allegation and/or proof could not be demanded by the repudiating vendor. The distinction thus drawn between the requirements in the two classes of cases appears to be somewhat exaggerated or rather extravagantly put, but, even apart from that, and, in any event, that distinction is hardly relevant or of any real assistance to the Appellant''s case. It is quite true that in an action for specific performance the Plaintiff must allege and prove his continuous readiness and willingness to perform his part of the contract but it does not necessarily follow that this requisite readiness and willingness on the purchaser''s part when the suit is for specific performance upon the vendor''s repudiation of the contract must always and inevitably include an actual tender of the purchase money to the vendor. The passages, cited by Mr. Mallick, are, in our opinion, no authorities for this extreme proposition, last above mentioned, and they do not, therefore, assist the Appellant in the present case.
13. The next point arises u/s 22(I) of the Specific Relief Act. It is said that the contract (Ex. 1) was unfair and unconscionable, and the circumstances under which it was made were such as to give the Plaintiff an unfair advantage over the Defendant. This aspect of the matter has been fully dealt with by the learned Subordinate Judge, and nothing has been placed before us to justify the conclusion that the learned Judge was in error, except possibly on one minor particular, viz., that the Defendant''s right of forfeiture extended to the entire amount of Rs. 5,001. It seems to us, on the materials on record, that this right of forfeiture under the agreement (Ex. 1) would not have been available except as against the earnest money of Rs. 801, but this, in our opinion, hardly makes any difference in the present case. The other circumstances are, in our view, quite sufficient to lead to the irresistible conclusion that the contract (Ex. 1) was not unfair or unconscionable* and was not entered into under circumstances which gave the Plaintiff any unfair) advantage over the Defendant. There is hardly any reliable evidence that the price stipulated was unjust or inadequate or that the transaction was in any way unfair or unconscionable of that the Defendant was pressed by circumstances to enter into an unequal bargain with the Plaintiff. Mr. Mallick sought to argue that the agreement (Ex. 1) was one-sided in that under if the Plaintiff would be entitled to specific performance in case of the Defendant''s default, and he had also the right to abandon the contract under certain circumstances but the Defendant had no corresponding rights and he was only entitled to forfeit the earnest money of Rs. 801 in case of the Plaintiff''s default. "We do not think that this argument is sound. There is no provision in the contract (Ex. 1) that for the Plaintiff''s default the Defendant would be entitled only to forfeit the earnest money and would not have any other rights, viz., as to specific performance or damages available in such cases under the general law apart from contract. There is admittedly no contract to the contrary overriding the normal rights under the general law, applicable to such cases, and the Defendant was not disentitled in the present case to enforce specific performance or to ask for appropriate damages if the Plaintiff had unlawfully broken the contract just as the Plaintiff in his turn, apart from the right of specific performance expressly provided in his favour in the contract in suit (Ex. 1), might have claimed appropriate damages in case of breach on the part of the Defendant. We are, accordingly, unable to accept Mr. Mallick''s argument that specific performance ought to be refused in the present case u/s 22(I) of the Specific Relief Act.
14. We turn now to consideration of the question u/s 22(II) of the Specific Relief Act. It has been argued before us that the partition of the country which took place between the date of the contract (Ex. 1) and the time of its performance brought about a phenomenal rise in the price of landed properties and it has been claimed on behalf of the Defendant that this unforeseen change would clearly attract the provisions of 22(II) of the Specific Relief Act to this case and would thus relieve the Defendant from the burden of specific performance of the contract (Ex. I). In our opinion, this argument is not sustainable in the facts and circumstances of the present case. It is true that the Defendant, and the same must be the case with the Plaintiff also, could not have foreseen either the partition of the country or the general rise in land values which followed in its wake. It may be said also, although there is no evidence on the Defendant''s side as to the condition or value of the property in suit in or about August, 1948, when the sale became due, nor is there any rebutting evidence on the Plaintiff''s side, the present point not having been taken in the written statement or specifically put in issue, that the suit property did greatly and even unexpectedly appreciate in value between the date of the contract, (Ex. 1) and the time of performance thereof. Even so, we are unable to agree that Section 22(II) of the Specific Relief Act would usefully assist Mr. Mallick''s client. If on the terms, noted above, it is to be held that the performance of the contract would involve some hardship on the Defendant which he did not foresee, it must be held also, broadly speaking, on a close parity of reasonings, that its non-performance would involve similar hardship on the Plaintiff. Clearly, therefore, the latter part of Section 22((II) of the Specific Relief Act would not be satisfied, and that section would not, therefore, bar the present suit. The Allahabad case of ''Balla Mal v. Chunni Lala (1912) 10 All. L.J. 498 : 17 I.C. 732, cited by Mr. Mallick, was one which came directly under the said Section 22(II) of the Specific Relief Act and, accordingly, specific performance was there refused. In that case the Court found that the non-performance of the contract would involve no corresponding hardship on the Plaintiff. The present case, on our finding made above, is clearly different and the Allahabad case, therefore, is plainly distinguishable.
15. On the above point, Mr. Mallick also referred to two passages occurring at pp. 313 and 314 of Banerjee''s "The Law of Specific Relief in British India", a well-known book on the subject, being the Tagore Law Lectures of 1906, where the learned author observes:... it has been repeatedly asserted by Judges, specially in America, that even when the agreement is perfectly good, the price adequate, and no blame attaches to the purchaser, if the transaction be inequitable and unjust in itself, or rendered so by matters subsequently occurring, specific performance may be denied, and the parties turned over to their remedy in damages (vide p. 313).
and then proceeds to lay down what, according to the learned author, is "the true rule" in these terms:
Equity will not relieve against hardship arising from a change in circumstances or the result of subsequent events, where these should have been in the contemplation of the parties as possible contingencies, when they entered upon the agreement. With regard to subsequent events, the question should be�Are they contingencies the possibility of which might have been foreseen? (Vide p. 314).
16. Relying on these passages, Mr. Mallick has argued that, in view of what has been set out in the preceding paragraph, a decree for specific performance should not be made in the present case. We would not say that the passages quoted might net be suggestive of the extreme view pressed by Mr. Mallick, but it seems to us that these passages, properly construed, do not contemplate that specific performance should be refused merely on the ground of hardship on the Defendant due to unforeseen changes of circumstances, over which neither party had any power or control, where non-performance of the contract would involve similar hardship on the Plaintiff. This view receives ample support from the relevant discussion on the subject at pp. 209 to 213 (Sections 417 to 424) of the classic treatise, Fry on Specific Performance (5th Ed.). An examination of the cases cited by Banerjee at pp. 313 and 314 of his book reveals no contrary indication and there is nothing also said to the contrary in para. 415 at pp. 366 and 367 of Halsbury''s Laws of England, Hailsham Ed., vol. 31, cited on the Appellant''s behalf. Mr. Mallick''s argument, therefore, cannot be accepted.
17. It is abundantly clear from what we have said above that the contract (Ex. 1) was quite fair and just and not productive of hardship at the time when it was entered into. The unforeseen partition of the country and the alleged abnormal rise in the value of the suit property in consequence thereof may have the effect of entailing some hardship on the Defendant, if the contract (Ex. 1) be now specifically enforced, but, the position being that its non-performance would entail similar almost equally great hardship on the Plaintiff, specific performance of the contract (Ex. 1) ought not to be refused merely on the ground of hardship to the Defendant. This is not a case where specific performance of the contract would be useless to the Plaintiff or would cause any disproportionately great harm to the Defendant without any corresponding or comparable benefit to the Plaintiff (as in the cases cited at p. 421 of Fry''s book) and specific performance cannot, therefore, be refused in this case merely on the ground of hardship to the Defendant.
18. We, accordingly, reject also Mr. Mallick''s argument based on Section 22(II) of the Specific Relief Act.
19. Two other matters remain to be briefly noticed.
20. As an allied "argument to his second point, namely, that u/s 22(I) of the Specific Relief Act, Mr. Mallick also suggested that the contract (Ex. 1) was vitiated by want of mutuality. If the contract had been lacking in mutuality, it might have been even void in law and, thus, it might not have been enforceable at all. In that case, the contract would not certainly have been specifically enforceable and the Appellant would have been on very safe grounds and might have even been in a much stronger position than what could have been conceived under the most optimistic view of Mr. Mallick''s second point. In the view, however, which we have taken of the contract (Ex. 1), while discussing Mr. Mallick''s second point, no question of want of mutuality can arise in connection with the same. The Patna case Jatadhan v. K.L. Daruka ILR (1950) 29 Pat. 912, cited on the point on the Appellant''s behalf, is clearly distinguishable. This argument of the Appellant''s Learned Counsel must also, therefore, fail.
21. The other matter concerns the Respondent''s objection to some of the points urged in support of the appeal on the ground that those points do not appear in the pleadings nor do they appear to have been raised before the learned Subordinate Judge and are also not to be found in the memorandum of appeal filed in this Court. The Respondent objected that such points should not be allowed to be raised for the first time in this appeal. The Appellant resisted claiming that, as such points involved pure questions of law, they could not, and in any view they should not, be shut out in view of the Full Bench decision of this Court in Balaram v. Mangata Dass I.L.R.(1907) 34 Cal. 941. As we have already negatived all the points raised in support of the appeal on the merits, it is not strictly necessary to express any opinion on this technical objection raised by the Respondent. It seems to us, however, that the Respondent''s objection cannot be met merely by the authority cited by the Appellant. The Full Bench case arose in totally dissimilar circumstances and the point there involved was fundamentally different and, if it had been necessary to go into this question, we would not have been prepared to throw out the Respondent''s objection merely on the said authority.
22. In the result, all the points raised in support of the appeal fail and it must be dismissed. We, accordingly, dismiss this appeal, but, in the circumstances of this case, we direct that the parties will bear their own costs in this Court.
Mookerjee, J.
23. I agree.
