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Chagan Chunilal Vs. Suka Barku - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberAppeal No. 290 of 1910
Judge
Reported in(1911)13BOMLR891
AppellantChagan Chunilal
RespondentSuka Barku
Excerpt:
.....be paid annually by instalments of rs. 100 ench on certain fixed dates ; (2) that in case of default in the payment of the first instalment on the due date, the plaintiff should be entitled to recover it as rent and sue for possession of the lands ; (3) that in case of default in the payment of any three or four subsequent instalments on the due gates the plaintiff should be entitled to recover possession of the lands and claim the unpaid instalments as rent; and (4) that on payment of all the instalments the title to the lands should be treated as having passed to the defendant by sale, but that in the meantime the plaintiff should continue owner thereof. the plaintiff sued for possession of the lands, alleging default, in the payment of the instalments of 1904, 1905 and 1906. the..........ground that there had been a breach of contract by the respondent and that the latter had by non-payment of instalments put an end to the contract.3. the lower appellate court, agreeing in that respect with the court of first instance, has found upon the evidence that there was 'distinct waiver' by the appellant 'as regards two of the instalments and most probably as regards the third.'the appellant bases his claim for possession on three subsequent defaults. but the lower appellate court has held that he is not entitled to it, because, after he had dealt with the respondent in respect of the first three instalments in such a manner as to lead the latter to believe that he would not insist on the payment of the instalments on the due dates, and that 'he had no intention of carrying out.....
Judgment:
The plaintiff agreed, in 1901, to sell to the defendant his lands for Rs. 1,000, and put the hitter in possession. The terms of the contract were, (1) that the purchase money should be paid annually by instalments of Rs. 100 ench on certain fixed dates ; (2) that in case of default in the payment of the first instalment on the due date, the plaintiff should be entitled to recover it as rent and sue for possession of the lands ; (3) that in case of default in the payment of any three or four subsequent instalments on the due Gates the plaintiff should be entitled to recover possession of the lands and claim the unpaid instalments as rent; and (4) that on payment of all the instalments the title to the lands should be treated as having passed to the defendant by sale, but that in the meantime the plaintiff should continue owner thereof. The plaintiff sued for possession of the lands, alleging default, in the payment of the instalments of 1904, 1905 and 1906. The lower Courts, finding that there had been waiver by the plaintiff as regards the first two instalments and probably as regards the third also, dismissed the suit. On appeal.-

Held:

That as to the first three istalments the plaintiff dealt with the defendant in such a way as to show that he did not insist on payment on the dates fixed in the contract; and that after that course of conduct, he was not warranted in enforcing payment according to the strict terms of the contract without previous intimation to the defendant to that effect.

N.G. Chandavarkar, Kt., J.

1. The appellant brought the suit, out of which this second appeal arises, to recover possession of the two lands in dispute under the terms of a contract for sale in writing between him and the respondent. By that contract, entered into in 1901, the appellant agreed to sell to the respondent the lands for Rs. 1,000. The respondent was put in possession thereof on the day of the contract. The material stipulations in the contract were these:- (1) that the purchase money should be paid annually by instalments of Rs. 100 each on a certain date fixed in the contract; (2) that in case of default in the payment of the first instalment on the due date, the appellant should be entitled to recover it as rent and sue for possession of the lands ; (3) that, in case of default in the payment of any three or four subsequent instalments on the due dates, the appellant should be entitled to recover possession of the lands and claim the unpaid instalments as rent; (4) that on payment of all the instalments, the title to the lands should be treated as having passed to the respondent by sale, but that in the meantime the appellant should continue owner thereof.

2. The appellant alleged in his plaint that there had been default by the respondent in the payment of the instalments of 1904,1905 and 1906. He, therefore, sued for possession on the ground that there had been a breach of contract by the respondent and that the latter had by non-payment of instalments put an end to the contract.

3. The lower appellate Court, agreeing in that respect with the Court of first instance, has found upon the evidence that there was 'distinct waiver' by the appellant 'as regards two of the instalments and most probably as regards the third.'the appellant bases his claim for possession on three subsequent defaults. But the lower appellate Court has held that he is not entitled to it, because, after he had dealt with the respondent in respect of the first three instalments in such a manner as to lead the latter to believe that he would not insist on the payment of the instalments on the due dates, and that 'he had no intention of carrying out the forfeiture clauses of the contract,' 'it was incumbent on him' to give the respondent 'notice that in future he intended to enforce the terms of the contract.'

4. We concur in this view of the law upon the facts found. The appellant seeks relief substantially on the ground that the respondent abandoned the contract for sale and put an end to it by failing to pay the instalments on the dates fixed in the contract. The question is-has there been abandonment on the part of the respondent 1 As to the first three instalments, the appellant dealt with the respondent in such a way as to show that he did not insist on payment on the dates fixed by the contract. After that course of conduct, he was not warranted in law in enforcing payment according to the strict terms of the contract, without previous intimation to the respondent to that effect.

5. The case resembles, in its essential features, Cornwall v. Henson [1900] 2 Ch. 298. In that case, there having been default by the vendee (who as in the present case had been put in possession on the date of the contract) in the payment of the purchase money by instalments on the due dates, the vendor resumed possession. The vendee sued for specific performance; and the question was whether the vendee had by his conduct abandoned the contract. It was found on the facts that the vendee had been generally in arrear with the instalments but that the vendor had from time to time allowed a postponement. All instalments had been accordingly paid by the vendee but after due date in each case, except the last. As this last instalment had not been paid on the due date, the vendor claimed to treat the contract as abandoned by the vendee. It was held that he could not so claim. The Master of the Rolls in his judgment said: 'I think it is plain that the vendor never brought to the mind of the purchaser, so long as they were in communication with each other, that if he did not pay the last instalment, the vendor would treat the contract as abandoned.'

6. The decree must be confirmed with costs, without prejudice to the rights, if any, of the appellant to recover any instalment or instalments under the contract, and to his right to posses, sion, in case any instalment accruing hereafter under the contract is not paid on the due date fixed thereby.


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