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Kartik Chandra Bera Vs. Bhusan Chandra Guria - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 4246 of 1973
Judge
Reported inAIR1977Cal52
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 3; ;Contract Act, 1872 - Section 55
AppellantKartik Chandra Bera
RespondentBhusan Chandra Guria
Appellant AdvocateGopal Chandra Mukherjee, Adv.;G.N. Roy, Adv.
Respondent AdvocateTapas Roy and ;Alok Chakraborty, Advs.
DispositionRule discharged
Cases ReferredIn Jadabendra v. Monorama Debya
Excerpt:
- .....the amount was deposited. the plaintiff filed an application on may 27, 1969 for disposal of the suit in terms of solenama. the opposite party no. 1 thereupon submitted that the deed should be perused and the final order be passed after few days. the suit was adjourned to june 2, 1969 and on that day the defendant no. 1 filed a petition for dismissing the suit according to the terms of the solenama. it was stated therein that the plaintiff did not act in terms of the solenama, he failed to endorse the registration receipt and to pay rs. 1,100 and inform to the court of such acts within april 26, 1969 as agreed and accordingly the suit was to be dismissed. by order dated june 5, 1969 the learned munsif held that both execution of the kobala and the payment was to be made within april.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. This Rule was issued at the instance of the plaintiff in Title Suit No. 357 of 1967 in the Court of 1st Mun-sif, Tamluk against the order No. 47 dated Sep. 21, 1973, whereby the suit was dismissed after contest in terms of Sole-nama which was made a part of the decree. The relevant facts are as follows : The plaintiff filed the above Title Suit for declaration of title and recovery of possession of the suit property on eviction therefrom of the defendant the opposite party No. 1 and the State of West Bengal. It was stated that the opposite party No. 1 was allowed to live in the suit property as the licensee and as he failed to vacate on demand the suit was instituted for recovery of possession on declaration of title. The opposite party No. 1 filed a written statement stating that he was a tenant under the plaintiff's father since 1347 B. S. and his right was also perfected by adverse possession and his name was duly entered in the record of rights as a raiyat under the State. A written statement was also filed on behalf of the State of West Bengal stating that the opposite party No. 1 was a tenant under the State. The suit became ready for hearing on April 16, 1969 when both the parties namely the petitioner and the opposite party No. 1 submitted that they would file a petition of compromise. Thereafter on April 17, 1969 both parties filed a petition of compromise. The terms of Solenama in English rendering are as follows :--

'1. We the plaintiff and the defendant No. 1 on the advice of our well-wishers and considering all circumstances have decided to settle the suit amicably on compromise on the following terms.

2. We the plaintiff and the opposite party No. 1 hereby mutually admit and egree that

(i) each term of solenama is consideration of the other,

(ii) in this compromise the time is the essence of the contract,

(iii) the plaintiff within April 26, 1969 will execute as vendor on behalf of his youngest minor son Kristo Prasad Bera, a kobala for about 6 cottas of land of Rs. 1,500 and register the same and endorse the registration receipt of the kobala in the name of the defendant No. 1 and deposit it in the Court and on that account pay Rs. 1.100 to the defendant No. 1 and inform Court accordingly. If the plaintiff complies with all these he will be entitled to a decree in the suit without cost and the opposite party No. 1 will deliver amicably khas possession of the decretal property to the plaintiff,

(iv) if the plaintiff do not perform the acts mentioned above within the time aforesaid the suit will be dismissed.

(v) the suit will be dismissed against defendant No. 1,

(vi) the Solenama will be a part of the decree and if the defendant No. 1 is unable to vacate the plaintiff will toe entitled to take possession with the aid of the Court and he will be liable to pay Rs. 200 as compensation,

(vii) accordingly we the plaintiff and .defendant No. 1 pray that the suit be fixed for May 27, 1969 for disposal in accordance with the terms of the Solenama.'

According to the plaintiff petitioner's case the Kobala was executed on April 25, 1969 and he tendered the money to the lawyer of the said opposite party and also to the opposite party; on their refusal to accept and inform the court accordingly, it became necessary that the amount should be deposited in Court. He accordingly filed an application on May 13, 1969 for deposit of money in Court. On this application the Court permitted the plaintiff to deposit the amount at his risk and thereafter it appears the amount was deposited. The plaintiff filed an application on May 27, 1969 for disposal of the suit in terms of Solenama. The opposite party No. 1 thereupon submitted that the deed should be perused and the final order be passed after few days. The suit was adjourned to June 2, 1969 and on that day the defendant No. 1 filed a petition for dismissing the suit according to the terms of the Solenama. It was stated therein that the plaintiff did not act in terms of the Solenama, he failed to endorse the registration receipt and to pay Rs. 1,100 and inform to the Court of such acts within April 26, 1969 as agreed and accordingly the suit was to be dismissed. By order dated June 5, 1969 the learned Munsif held that both execution of the kobala and the payment was to be made within April 26, 1969 and as the payment had been made beyond the time, the suit was to be dismissed in terms of the Solenama. Accordingly, the suit was dismissed.

2. The plaintiff moved this Court in revision against this order being Civil Rule No. 3342 of 1969 and it was held by this Court that the learned Munsif did not give reasons in support of his conclusion. Accordingly by order dated November 26, 1971 the impugned order was set aside and the case was sent back to the trial Court for decision in accordance with law. Thereafter the matter came up for hearing and the learned Munsif toy his order No. 47 dated September 21. 1973 after considering all aspects held that the suit was liable to be dismissed in terms of the Solenama. The suit was accordingly dismissed after contest in terms of the Solenama filed on April 17, 1969. This rule as already stated, is againsl this decision.

3. Mr. Gopal Chandra Mukherjee, learned Advocate appearing for the petitioner, submitted that the trial court should have held on the interpretation of the Solenama that time was not essence of the. contract; further even if it were so, in view of the substantial compliance of the provisions of the contract by the plaintiff end on equitable consideration the court should have granted the relief to the plaintiff by decreeing the suit in terms of the Solenama instead of dismissing the same. He further submitted that in any event the contract in the Solenama was a voidable one and the opposite party No. 1 did not even avoid the contract by any overt act. He was accordingly not entitled to challenge the compromise contract. For all this reasons it was submitted that the judgment challenged in the rule should be set aside and suit should be decreed in favour of the plaintiff in terms of the Solenama. Mr. Tapas Roy learned Advocate appearing for the opposite party No. 1 contended that time was the essence of the contract and the plaintiff failed to perform his part of the contract as required and was not entitled to any relief.

4. We have set out above in detail an English rendering of the Bengali Solenama. On careful consideration of the terms thereof, it appears to me that the time was made the essence of the contract of compromise. Not only was this condition mentioned in the Clause (2) of the contract it was also mentioned in the subsequent clause arid each clause was made the consideration of the other. The plaintiff admittedly failed to perform the acts mentioned therein namely the execution and registration of the Kobala and payment of Rs. 1,100 within April 26, 1969. It is also difficult to accept the plaintiff's case that he tendered the money within time which was denied by the opposite party No. 1 and there is no explanation for the delayed deposit in Court on May 13, 1969. In view of the express provision of the agreement which was a material condition thereof there is no escape from the conclusion that the parties made the time essence of the contract between them providing for consequence for failure to perform the obligations therein imposed on either party.

5. It has been next contended that even in such a case, the Court has power and discretion to grant adequate relief to the party on equitable consideration when substantial part of the agreement has been complied with by him. Reliance was placed on the decision in Jamshed Khodaram v. Burjorji Dhunjibhai, 20-Cal WN 744 = (AIR 1915 PC 83). It was held in that case that Section 55 of the Indian Contract Act does not lay down any principle which differs from those which obtain under the law of England as regards contracts to sell land. Under that law, equity which governs the rights of parties in cases of specific performance of contracts to sell real estate, looks not at the letter but at the substance of the agreement in order to ascertain whether the parties notwithstanding that they named a specific time within which the completion was to take place really and in substance intended more than that it should take place within a reasonable time. This judgment, it appears, is of no assistance to the plaintiff as. we have already seen the time was made essence of the contract as its material term by agreement in a protracted litigation.

6. Mr. Mukherjee has referred also to the decision in Kandarpa Nag v. Ban-wari Lal Nag, 33 Cal LJ 244 = (AIR 1921 Cal 356) in which Sir Ashutosh Mooker-jee speaking for the Division Bench observed that in case of specific performance of contract to sell real estate, equity which governs the rights of parties looks, not at the letter but at the substance of the agreement, in order to ascertain whether the parties, notwithstanding that they named a specific time within which the completion was to take place, really and in substance, intended more than it should take place within a reasonable time. The Court further observed that in cases, where the parties intended in the first conception of the agreement to make time the essence of the contract, the court would not be competent to extend the time, except by consent of all parties concerned. In Jadabendra v. Monorama Debya, : AIR1970Cal199 the Court was of the opinion that in the facts of the case, the principle of Kandarpa Nag case apply, and, the relief was available to the aggrieved party on that basis. In this case the sut was decreed ex parte and thereafter the application under Order 9, Rule 13 of the Code was filed giving rise to the Misc. Case. A petition of compromise was filed therein where by the defendant was to pay certain amount within certain time to have the Misc. Case allowed and the suit restored to file after setting aside the ex parte decree. There was also a default clause providing that if the payment was not made within the specific time the Misc. Case would stand dismissed and the ex parte decree would stand affirmed.

The petitioner did not make the deposit in time on account of his illness and as a result the Misc. Case stood dismissed and thereafter an application was made under Sections 148 and 151 of the Code of Civil Procedure. The Court was of opinion, following Kandarpa Nag's case, that it had ample power in an appropriate case to grant relief against forfeiture apart from consent of parties.

7. In the facts of this case before us it appears that time was made the essence of the contract and this was a material and essential condition of the contract. As such the time could not be extended except by the consent of all the parties concerned as was laid down in Kandarpa Nag's case (AIR 1921 Cal 356). It was a case where by the compromise petition the case was adjourned to another date for passing a decree in terms of the Solenama and the time was mentioned specifically as essence of contract which would only enable the party to claim benefit on the basis thereof. In such state of affairs, in view of express and mandatory condition of the contract, it is not possible to hold that equitable consideration should prevail to modify the terms of the contract by Court against the expressed provision of the agreement and without consent of parties. Further on merits also it is difficult to accept the case of the plaintiff when he stated that the deposit was being made only on the 14th May, 1969 in terms of the contract when such payment to the defendant No-1 was to be made within April 26, 1969-On both aspects it seems to me that the plaintiff has failed to claim any equitable or other consideration in his favour by the Court

8. About the contention under Section 55 of the Contract Act it is to be noted that the defendant did not accept the delayed deposit as the performance of the terms of the contract and in his application for objection he prayed for rejection of the plaintiff's prayer and also for dismissal of the suit in terms of the agreement. On this ground also I do not find that the plaintiff is entitled to any relief whatsoever. The rule accordingly fails and is discharged but there will be no order for costs. It is however, necessary to pass some consequential order and I direct that the plaintiff would be at liberty to withdraw the amount of Rs. 1.100 deposited by him in Court. Further the kobala executed in terms of the Solenama is to be treated as cancelled and of no effect. A copy of this judgment is to be sent to the Sub-Registrar of the Registration Office where the document is stated to have been registered for necessary action.


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