N.K. Das, J.
1. The plaintiff in a suit for specific performance of contract is the appellant. The case of the plaintiff is that the defendant executed ah agreement (Ext. I) on 9-12-1963 agreeing to sell Ac. 0.99 cents of land situated in village Goelundi in Berhampur Town for a sum of Rs. 19.800/- at the rate of Rs. 200/- per cent of land and took an advance of Rs. 500/-. In the agreement, it was stipulated that the defendant would get the land measured in presence of the plaintiff within 2 months and 15 days from the date of the agreement and execute and register a sale deed and deliver possession of the property to- the plaintiff within that period of 2 months and 15 days. In case of failure to get the land measured in presence of the plaintiff and to execute the sale deed the defendant would refund the advance amount of Rs. 500/- along with Rupees 6,000/- as damages and also execute and register the sale deed. If within the stipulated period the plaintiff fails to carry out his part of the contract, then he had also to pay Rs. 6,000/- as damages to the defendant and purchase the land at the stipulated price. But in spite of repeated requests by the plaintiff, the defendant postponed the execution of the sale deed on some plea or other, although the plaintiff offered the balance consideration money. Some time thereafter, the plaintiff came to know that the defendant left for some other place along with her husband.
Plaintiff then made enquiries to find out the address of the defendant in order to complete the transaction, but in spite of his best effort, he failed to get the correct address of the defendant. From local enquiry the plaintiff got information that the defendant would be available at Rourkela, as her husband was serving there. Plaintiff sent three registered letters to the defendant through his advocate, but all the letters came returned without being served. Some time later, the plaintiff learnt that the defendant had come to Berhampur and therefore he went to her place, but the defendant remained inside the house and avoided to talk to the plaintiff. As the plaintiff failed to contact the defendant, he sent another registered letter to the defendant on 11-2-67, but the said letter came back with the endorsement that the addressee refused to accept the letter. It is averred that the plaintiff has been keeping the balance consideration money ready at hand with the hope that the defendant would perform her part of the contract, but the defendant is avoiding to perform her part of the contract. The plaintiff has claimed damages to a tune of Rs. 6,000 and for execution of the sale deed.
2. The case of the defendant is as follows:--
She has denied the receipt of an advance of Rs. 500/- from the plaintiff and to have agreed to sell the suit land to the plaintiff. She states that she does not know the plaintiff and has neither seen him nor negotiated anything with him for any sale deed. One Narasingh Panigrahi falsely represented to her that Government would take possession of all the lands for the construction of the Medical and Engineering Colleges as well as Hospital and other quarters and it would be very difficult for the defendant to go to various offices and courts to Ret the compensation money. Besides, the compensation that would be paid would be very low. To avoid all these troubles, she had to show that she had either sold the land or agreed to sell the same to someone, so that the transferee or the conractee would pursue the matter and get good compensation and pay the same to the plaintiff. The said Narasingh Panigrahi did not allow any time to her for taking any advice or cool thinking. Her husband was absent and at that time Narasingh Panigrahi secured two outsiders and the scribe, who likewise made all sorts of ' misrepresentation to her colluding with Narasingh Panigrahi and got an agreement scribed in Oriya. She does not know reading or writing in Oriya and without letting her know the contents of the document, her signature was taken thereon.
At the time of obtaining her signature, she was orally informed that the payment of Rs. 500/- as advance, as written in the document was meant to give an impact of genuineness to the transaction, although she was really not paid the amount. The plaintiff is a man of no means and the allegations relating to notices are totally false. The defendant was residing with her husband at Berhampur in the police staff quarters for nearly eight months from the alleged date of the agreement, from there they went to Chatrapur and from Chatrapur her husband went to Panposh and Rourkela but she was all along residing at Kama Palli at Berhampur. The story that the defendant's whereabouts could not be known, is manipulated. The plaintiff did not go to measure the land in presence of the defendant and he had no money in hand. The plaintiff also did not get the stamp paper and never asked the defendant to execute and register the sale deed. In fact the defendant attended the Sub-Registrar's office when the period of 2 months and 15 days was going to expire, but neither the plaintiff nor Shri Narasingh Panigrahi came to that office. Before expiry of 2 months and 15 (Jays the defendant sent a registered notice to Narasingh Panigrahi complaining about his laches and default. It is alleged that Narasingh Panigrahi had taken away the title deeds 'from the defendant and had not returned the same.
After the registered notice by the defendant, Narasingh Panigrahi did not send a reply, but instead sent a man to threaten the defendant with action. Defendant never agreed to pay the damage of Rs. 6,000/- and the plaintiff has not suffered any damage. It is further averred that the alleged agreement is vitiated with fraud and misrepresentation and is never valid or binding on the defendant and as such, cannot be enforced. The defendant treated the alleged agreement as invalid and cancelled and negotiated for sale of the said land for Rupees 50,000/- and the plaintiff having come to know of this has filed the suit and he is not entitled to the specific performance of the contract.
3. The trial court has held that the defendant out of her own free will entered into the contract and executed Ext. 1 with full knowledge of the terms embodied therein and that an advance of Rupees 500/- had been paid by the plaintiff to the defendant who agreed to sell the suit property. The defendant did not fail to perform her part of the contract. The agreement Ext. 1 is enforceable and binding on the parties in spite of the delay in its performance. The damages contemplated under Ext. 1 would not mitigate or substitute the relief for specific performance. The consideration for the sale of the land under Ext. 1 cannot be said to be a bad bargain. The allegation of fraud said to have been practised by Narasingh Panigrahi (P. W. 3) hats been negatived. The plea of the defendant that she did not refuse to receive the registered notices sent by the plaintiff cannot be accepted. The defendant failed to discharge the onus in establishing that the plaintiff had abandoned the contract and the delay in coming to Court will not stand in the way of specific performance of contract. Time was not of the essence of the contract, but ultimately it is held that the plaintiff is not entitled to decree for specific performance of the contract, inasmuch as he was not willing to perform his part of the contract one or two days before the expiry of the period of two months and fifteen days as agreed in the contract.
4. It is undisputed that the defendant had executed the contract with full knowledge of its contents. No 'fraud or misrepresentation was practised in executing the agreement Ext. 1. The consideration fixed in the contract is not unreasonable. The only point in dispute is whether the plaintiff is disentitled to ask for specific performance of the contract, because he did not ask for execution of the sale deed within two months and fifteen days as stipulated under the contract. This also leads to the question whether time was of the essence of the contract.
5. In paragraph-8 of the plaint, the plaintiff has averred:
'The plaintiff is even now ready to perform his part of the obligation on payment of the balance of consideration but as the defendant is avoiding to perform her part of the obligation by execution of the sale deed, the plaintiff is obliged to file this suit without waiting further 'for specific performance of the contract and for award of damages for inconvenience and loss suffered by the plaintiff as per the terms of the agreement dated 9-12-63. The plaintiff submits that the defendant is solely responsible for such delay and by so doing the defendant has put the plaintiff to unnecessary loss and inconvenience.' In the written statement, the plea of the defendant is that she does not know the plaintiff and whatever transaction was done, it was by P. W. 3 Narasingh Panigrahi who got the document from her and the plaintiff (defendant-?) signed the same without knowing the contents thereof. There is no denial in the written statement about the averment of the plaintiff as to his readiness and willingness to perform his part of the contract. Narasingh Panigrahi has been examined as P. W. 3 and he has refuted the allegation made in the written statement about the fraud and misrepresentation and the trial court has also held that the plea of fraud and misrepresentation is not true and is not acceptable. Plaintiff has examined himself as P. W. 2. In para-graph-2 of his deposition he has stated that prior to Exts. 2 and 2/a, the letters sent by him, he had been to the defendant to meet her in her house as soon as he got information that the defendant was residing there. He has further stated. 'I am remaining ready to purchase the suit land since the time of agreement. Even now I am prepared to purchase'.
There is no counter-statement to these facts and this statement has also not been dislodged in cross-examination.
On the other hand, he has stated in paragraph-12 of his deposition that he arranged money to purchase the suit land in March or April of the year 1965 and the amount was near about Rs. 20,000/- which he has not kept in the bank nor utilised it otherwise. It also transpires from his deposition in paragraph-3 that he has got about forty acres of cultivable land and for purchase of the suit land he had negotiated to sell a tope which he ultimately sold on 17-4-65 under Ext. 4. D. W. 1 is the defendant. She does not speak a word counter to the statements made by the plaintiff about his readiness and willingness to purchase the land. Though her plea is that it was Narasingh Panigrahi who got the document Ext. 1 executed by her, yet she states in paragraph-14 of her deposition that she never enquired about the development from Narasingh Panigrahi after executing Ext. 1. Even the attestor to Ext. (P. W. 1) was coming to her house but she never enquired about the development after executing Ext 1. She admits that she did not give any notice either to P. W. 3 or to P. W. 1 with regard to the agreement Ext. 1. On the other hand, it is to be found in her evidence that P. W. 1 has built her house and she effects repairs to her House whenever necessary.
The averments in paragraph~8 of the plaint have not been traversed in the written statement. The clear statement of the plaintiff that he was ready and willing to purchase the suit land from the date of the agreement till the date of the suit has also not been challenged nor has been proved to be untrue. From the aforesaid evidence, it is clear that the plaintiff has not only averred in the plaint, but has also established by evidence his readiness and willingness to purchase the land from the date of the agreement till the date of the suit,
6. Much argument was advanced on behalf of the defendant-respondent that the time stipulated in Ext. 1 about the performance of the contract was two months and fifteen days, after measurement of the land and there being a condition of penalty by way of damages for non-performance of the contract, it indicates that the time was of the essence of the contract. It is also submitted that the plaintiff has stated that that the time was of the essence of the contract. From Ext. 1 it appears that out of Ac, 2.07 cents of land, a portion had already been sold and the property to be sold was Ac. 0.99 cents which has been described by boundaries. It has further been stipulated that the defendant would sell the said Ac. 0.99 cents within two months and fifteen days from the date of the agreement after getting the land measured in presence of the plaintiff and would deliver possession thereof to the latter. If this is not done, the defendant binds herself to execute the sale deed and deliver possession of the property' and in addition she would return the sum of Rs. 500/- received by her as advance besides paying damages of Rs. 6.000/-.
If the plaintiff does not purchase the land within the stipulated period and delays the matter, he would also be liable to damages of Rs. 6,000/- and get the document registered in his favour. It has been held by the trial court that the consideration fixed under Ext. 1 is not improper or unreasonable. It has further been held that the case of the plaintiff that the defendant was absent 'for a long time and was avoiding to receive the notices is to be believed. In view of the evidence adduced on behalf of the plaintiff that he tried his utmost to find out the defendant and after sending letters in Rourkela address ultimately he approached the defendant for sale of the land, the plea of the defendant that she was all along living in Berhampur or nearabout Berhampur has been rightly negatived by the trial court. This would show that the plaintiff had been trying to find out the defendant, but for reasons beyond his control he could not meet the defendant nor his letters were delivered to the defendant.
Relying on Subeyya v. Veeraya, AIR 1957 Andh Pra 307, it has been held in Mulla Badruddin v. Master Tufail Ahmed, AIR 1963 Madh Pra 31, that in a contract of sale of immoveable property, time would not be regarded as o'f essence unless it is shown that the parties intended that their right should depend upon the observance of time as the essence of contract. It is open to one of the parties to make time of the essence of the contract by calling upon the other party who has been guilty of unreasonable delay to perform the contract within a stated time by giving him! a reasonable notice. It has further been held in that case that it is settled law that without giving him a reasonable notice to the other party to complete the contract within a specified time, the contract could not be cancelled at the sweet will of one party. The Madhya Pradesh High Court has further held that where it plainly appears from the facts of the case that the contract was not abandoned at any time by the plaintiff nor did he ever make the defendant believe that he would not enforce it and it is also clear that the defendant did not change his position by reason of any plea which could be said to have been introduced by the plaintiff and the rights of a third party have also not intervened, mere delay in the institution of the suit for the specific performance of the contract cannot affect the plaintiff's rights. The delay to defeat the rights of the plaintiff must be such that it may properly be inferred that the plaintiff had abandoned his right or on account of delay there must have been such a change of circumstances that specific performance would prejudice the defendant. From long delay alone without anything 'further abandonment of right cannot be inferred.
The Supreme Court also in Mademsetty Satyanarayana v. Yelloji Rao, AIR 1965 SC 1405, has held that mere delay extending up to period of limitation is not sufficient ground to refuse specific performance of contract and proof of waiver or abandonment of right is not a precondition 'for refusal of prayer for specific performance of contract. The field of discretion cannot be defined but Court would not grant relief if it would be inequitable. The position depends upon the facts and circumstances of each particular case which the Court has to decide.
Admittedly, defendant has not given any notice to the plaintiff repudiating the contract alleging that the plaintiff failed to perform his part of the contract. It is argued by the defendant-respondent that plaintiff has not offered stamp paper or the draft sale deed to the defendant. It transpires from the evidence on record that the plaintiff tried his utmost to find out the defendant, but the defendant avoided. In such circumstances, it was not possible on the part of the plaintiff to offer the draft sale deed or purchase the stamp paper for the document. It cannot, therefore, be said that plaintiff was at fault or that time was considered to be of the essence of the contract. If defendant thought that time was of the essence of the contract, it was open to her to give notice repudiating the contract alleging non-performance of the part of the contract by the plaintiff. The facts and circumstances of the case clearly show that time was not of the essence of the contract and the parties did not intend it to be so. Defendant has also not given any notice to the plaintiff about measurement. It appears that after execution of Ext. 1, the defendant tried to avoid the plaintiff and the plaintiff in spite of his efforts could not contact the defendant.
Ultimately, the plaintiff went to the defendant, but the latter remained inside her house and did not meet the plaintiff. Thus, it is to be held that the defendant never took the stand beforehand, nor she acted in any way to show that she repudiated the contract for its non-performance within two months and fifteen days. There is no evidence to show that after expiry of two months and fifteen days the defendant acted in such a way in dealing with the land in question that the interest of a third-party has been brought in and that she would be in any way prejudiced. In such circumstances, it is to be held that time was not considered by the parties to be of the essence of the contract and mere delay on the part of the plaintiff to file the suit as has been explained by him does not disentitle him to the relief of specific performance of contract.
7. It is contended by the defendant-respondent that in the notice given by the plaintiff he has not stated that he was ready and willing to perform his part of the contract, but as we have held above, from the averments in the plaint as well as from the evidence on record, which are unchallenged, it should be held that non-mention of such fact in the notice does not disentitle him to the relief claimed.
8. It is also contended by the defendant-respondent that she was at Hie office of the Sub-Registrar on the day when the period of two months and fifteen days got expired. Be that as it may, this does not affect the rights of the plaintiff, inasmuch as the defendant has not given any notice to repudiate the contract for delay and there is nothing on record to show that plaintiff had noticed that on that day the defendant was present at the Sub-Registrar's office. It may be that 'for some other purpose the defendant had been to the Sub-Registrar's office, and that does not establish that for the purpose of execution of the sale deed the defendant had been there. This statement of the defendant has no force in view of the 'fact that she had not made any attempt for measurement of the land as stipulated in the contract before that date.
9. On the aforesaid analysis, we hold that the decision of the trial court disentitling the plaintiff to specific performance of contract cannot be sustained.
10. There being no claim for damages by notice 'from any side, the plaintiff is not entitled to the damages as stipulated in the contract. In our consideration, it will also be inequitable to award any damages in the facts and circumstances of the case. We, therefore, hold that plaintiff is entitled only to specific performance of the contract and delivery of possession of the land in question.
11. In the result, the appeal is allowed. The judgment and decree of the trial court are set aside. The suit of the plaintiff is decreed to the extent that the defendant would execute the sale deed in favour of the plaintiff in respect of the property described in the agreement Ext. 1 and deliver possession of the property to the plaintiff within three months from the date of the decree, failing which the plaintiff will be at liberty to get the sale deed executed as aforesaid in his favour at the cost of the defendant and obtain delivery of possession through Court. The prayer for damages is disallowed.
In the circumstances of the case, there will be no order as to costs of this appeal.