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Judgment
M.S. Menon, J.—This appeal arises from the dismissal of a suit for the specific performance of a contract of sale dated 15-7-1938. Ex. T, the contract of sale, reads as follows:
This day the 15th July 1938 corresponding to 31st Mithunam 1113, we, Mr. C.R. Thompson, Puthen Road, Trivandrum, power of attorney, holder of Casper J.B. Kohlhoff now residing in U.S. America, and Miss Petronilla Elizabeth Wilhelmina Kohlhoff, Glen Mead, Trivandrum, hereby promise to sell Perni Ville house and compound described in the schedule shown below at the rate of Br. Rs. 150/- per cent including the building to Mr. S.J. Silas now, residing in Damodara, Ceylon and have this day received Br. Rs. 200/- (two hundred) from Mrs. S.P. Santhappan on behalf of the above Mr. Silas as advance and part payment bearing 6 p.c. interest.
The above property is under mortgage and a redemption suit has been filed in O.S. 626/1106 and has been decreed in terms of the plaint in the lower Court, and the mortgagee has gone on appeal to the High Court in A.S. 172 of 1113. The sale deed will be executed as soon as the appeal petition is disposed of, and on receipt of the balance of consideration.
Subsequent to the contract of sale the Plaintiff obtained a conveyance of Miss Kohlhoff's (D.W. 1) one half share in the property by the sale deed Exhibit P dated 25-2-1940. The suit is in respect of the other half of the property belonging to the Defendant and the prayers in plaint are:
(a) For a decree directing the Defendant to execute a sale deed for the plaint property in favour of the Plaintiff.
(b) For a declaration that the decree in A.S. 172 of 1113 has become extinguished.
(c) For an injunction restraining the Defendant from executing the decree in O.S. No. 626 of 1106 on the file of the District Munsiff's Court, Trivandrum.
(d) For all costs and interest on costs.
(e) For such other incidental reliefs as are necessary for a final adjudication of the (sic).
The judgment of the High Court of Travancore in A.S. No. 172 of 1113 was pronounced on 22-12-1944 (Ex. S). The Plaintiff took an assignment of the rights. of the mortgagee under the decree in A.S. No. 172 of 1113 (Ex. R), by the sale deed Ex. Q dated 22-2-1945. Paragraphs 14, 16 and 17 of the plaint:
By the sale deed of 10-7-1120 referred to above the said decree has become extinguished and the Defendant has no right to execute it.
The Defendant is liable to pay the entire amount under the decree in A.S. 172 of 1113 and it is Fs. 3059/-.
Plaintiff has applied for challan to deposit the balance amount of Fs. 8790 Chs. 3 due to the Defendant under the contract of sale.
and prayers (b) and (c) are based on the Plaintiff's claim in pursuance of the said assignment.
For a proper disposal of the case, it is unnecessary to deal with the correspondence anterior to Ex. IV, the letter of the Plaintiff's Advocate dated 6-12-1944. Ex. IV and the letters that followed are extracted below:
Exhibit IV, letter of the Plaintiff's advocate Mr. Sathiyanesan to the Defendant's Attorney Mr. Thompson dated 6-12-1944:
With reference to our conversations and your unchel card dated 28th Nov. 44, I have further talked the matter over with my client Mr. Silas.
As I told you in person, he is ready with the money (Rs. 1663 As. 2) to settle the transaction which you for your part agreed to vide the contract of sale given by you. In addition, I have prevailed upon him to pay the amount of Rs. 353 appearing in the High Court judgment.
On the other hand, he claims half the amount of rental which on demand from you he paid to you in your capacity as receiver. Please let me hear from you.
Exhibit L, Mr. Thompson's letter to Mr. Sathiyanesan dated 20-2-1945:
With reference to your letter dated 20-4-20, re: the sale of Parinivila house and compound to Mr. Silas, I had personally requested you to let me have a copy of the agreement. But this has not yet been given.
The area of the land to my share is 12 cents. If required we shall measure it jointly.
Mrs. Silas took the house on a monthly rental of B. Rs. 25/-. But since she purchased the western half of the 24 cents of the property she was given a concession of Rs. 10/-. Hence the arrears of rent at Rs. 15 (Fifteen) p.m. is due from her.
Your client is liable for all the liabilities on the property purchased by her during the pendency of the suit.
Kindly advise your client and come to a speedy settlement or I will have to take action for eviction etc. I may also inform you that your client cannot occupy the house free of rent. She must either pay rent or interest at 12 per cent, on the amount due me under the value of the property, which has not yet been paid to me.
I had also requested you to prepare the draft sale deed, satisfying the above conditions. The delay is yours. Kindly see the matter is closed as early as possible. Thanks.
Ext. V, Mr. Sathiyanesan's letter to Mr. Thompson dated 24-2-1945:
Your registered letter dated 20-2-1945 to hand, Mr. Silas was made fully aware of the contents of the said letter.
Mr. Silas says that, though he was always ready with money and was trying his utmost'' to take the sale deed, you have been wantonly evading with a view to get some unlawful gain in addition to agreed sale consideration.
After my letter dated 20-4-1120 you never asked me for a copy of the agreement.
At the time of the sale deed by the other one of sharer, the property was measured and the entire area was found to be twenty-two cents and 175 square links. As vendor you are bound to have the property measured at your cost and convince the purchaser as to the area.
Mrs. Silas did not take the house on rental from you, nor has she taken any sale deed in her name during the pendency of the suit. On the other hand, you should know to whom you handed over possession of the property. The rent of Rs. 12 was for the entire house and compound and not for one half.
''Mr. Silas has taken an assignment of the mortgagee's rights under the decree in O.S. 626 of 08. The amount due to the mortgagee under the decree must be deducted from the agreed sale consideration and if you agree to execute the sale deed, Mr. Silas is prepared to pay the balance amount on the date of execution of the document''. You never asked me to prepare a draft sale deed.
The delay is yours. You will remember, I have, apart from writing, been personally to you three times to expedite the transaction on behalf of my client, and each time you put up some new proposition or other without in any way desiring to conform to your agreement.
(The underlining here in '' '' is ours).
Ext. M, Mr. Thompson's letter to Mr. Sathiyanesan dated 18-3-1945:
I am in bed for some time now and I am notable to move about. Will you please come over for a, few minutes. Thanks.
Ext. N, Mr. Thompson's letter to Mr. Sathiyanesan dated 20-3-1945:
I have your letter of February 24, with all the possible false accusations. In the above letter you have given the actual area of the land as 22 cents and 175 sq. links, measured and agreed upon by the owner of the other half of the property. Therefore I too accept it.
I do not remember the terms of the agreement. So I requested you to show me the agreement or its copy. Since you have not complied with the above two requests, the matter is unnecessarily delayed. So you will kindly do the above and register the document at once. I would request you to kindly show the sale deed draft'' as well as the above documents, to my advocate Mr. Varadaraja Iyengar whose approval will be enough for me. You know my present condition. So please do not delay. I hope to see you at my place tomorrow evening with the papers as promised. Thanking you. Yours sincerely. (Sd.) C.R. Thompson.
D.T. Sathiyanesan Esq., B.A., B.L., Advocate, Trivandrum. Yesterday I sent you a chit which you refused to accept. So I am registering this. Please do not be offended.
Ext. VI. Mr. Sathiyanesan's letter to Mr. Thompson dated 23-3-1945:
Your registered letter dated 19-3-45 to hand. It is only due to your wilful negligence and dilatory tactics that my party was driven to the only course open to him of filing a suit against you. He has filed the suit and deposited the due amount in Court.
Personally I do not see any necessity of again visiting you or contacting your advocate as suggested by you. If you wish to discuss the matter, you may meet me in my office where any references you may require or papers you may wish to see, are available. I shall not be in the station for a few days from, 28-3-45.
It is clear from the above that what the Plaintiff wanted was the implementing of Ext. T not according to the terms contained therein but with the modifications he deemed proper and even in the plaint dated 4-3-1945 the willingness disclosed, is not a willingness to deposit the full amount due under Ext. T but such balance as remained after making the deductions he considered justifiable.
As stated by the Privy Council in "Ardeshir H. Mama v. Flora Sassoon" AIR 1928 PC 203 (A) an injured party who sued at law for a breach going to the root of the contract elected to treat the contract as at an end and himself as discharged from its obligation but in a suit for specific performance.
He treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit...Although so far as the Act is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England. ( Section 24(b) is the nearest); it seems invariably to have been recognised, and, on principle their Lordships think rightly, that the Indian and the English requirements in this matter are the same.
The continued desire to purchase the property included in Ext. T but on the Plaintiff's own terms regarding the payment of the price is not the "continued readiness and willingness" on which the law insists as a condition precedent to the grant of a decree for specific performance. If anything, it is a negation of his "continued readiness and willingness" to perform the obligations under Ext. T and should by itself entail a dismissal of his suit.
Specific performance is by no means an absolute right but one which rests'' entirely in judicial discretion and always with reference to the facts of a particular case. It is also settled law that where a trial Court has exercised its discretion in one way, an appellate Court will not interfere unless it be established that the discretion has been exercised perversely, arbitrarily or against judicial principles. We do not think there is any justification in the circumstances disclosed for our exercising a discretion in favour of the Plaintiff.
In the view we have taken there is no need to discuss the other arguments advanced before us. We dismiss the appeal with costs.