U.C. Law, J.
1. This is a suit for the specific performance of a contract for the sale of the demarcated eastern portion of premises No. 92 Narkeldanga Main Road measuring about 1 Bigha 10 Cottas 14 Chittaks and 24 Sq. Ft. for the price of Rs. 45,000/-. This suit was originally filed by the plaintiff against Kashinath Auddy, the vendor, but he having since died, the defendants Nos. 1 and 2 have been substituted in his place. The agreement of which specific performance is asked for is dated April 12, 1954 entered into between the plaintiff and Kashinath Auddy and inter alia, provides as follows:
(a) The purchase shall be subject to the approval of the vendor's title to the said property by the purchaser's solicitor Mr. D. C. Dutt.
(b) The vendor would deliver or cause to be delivered to the purchaser's solicitor all the title deeds in any way relating to the said property within one month from the date hereof for investigation of title.
(c) The vendor would make out at his own cost a good title to the said property and would join at his own cost all necessary parties to the conveyance.
(d) The purchase shall be completed within two months from the date of the approval of the vendor's title to the said premises.
(e) If the title of the vendor be approved and the vendor fails or neglects or refuses to complete the sale then the vendor shall on demand refund the purchaser's money and shall also pay to the purchaser all losses, damages costs and expenses that the purchaser may incur or put to by reason of such failure on the vendor's part and notwithstanding the right of the purchaser as aforesaid the purchaser would also be at liberty to get the contract specifically performed...... and deduct all costs of and incidental thereto out of the purchaser's money.
2. It is stated that the defendant failed and neglected to carry but the said agreement on his part and/or complete the transaction in terms of the agreement and has since wrongfully repudiated the same and that the plaintiff has been and still is ready and willing to perform his part tinder the said agreement.
3. There are three written statements. The first is by Kashinath Auddy who has since died. His defence, inter alia, is that the plaintiff fraudulently and on false representation procured his signature on the document that it was in respect of a mortgage for Rs. 3,000/-. He has further stated that only Rs. 1,000/- was paid on the execution of the document and the balance sum of Rs. 2,000/- has not been paid. His next defence is that the plaintiff's attorney was also his attorney who was a party to or privy to the said purported transaction with full knowledge of all facts. He denied that the plaintiff has been and still is ready and willing to perform his part under the said agreement. He has particularly denied the plaintiff's right to claim specific performance of the purported agreement on the ground that it was procured fraudulently and by making false representation as stated before and that he has avoided the said agreement, He, states that the purported agreement was or otherwise not specifically enforceable; that the suit for specific performance is not maintainable as the plaintiff had not yet approved the defendant's title to the property. The written statements of the other two defendants are on the same line as that of Kashinath and they have also denied that the plaintiff is entitled to specific performance of the purported contract.
3A. The defendant Kuntalmala Dey, in her written statement, has adopted the written statement of Kashinath Auddy, deceased.
4. In view of the course this action has taken it is not necessary to deal with the written statements in further details. The nature of the defence will be clearly manifest from the issues raised which are as follows:
1. Was the signature of defendant No. 1 on the agreement for sale dated April 12, 1954 procured in the circumstances stated in paragraph 2 of the written statement of Kashinath Auddy?
2. Did the plaintiff pay Rs. 1,000/- only and not Rs. 3,000/- as alleged in paragraph (ii) of the written statement of Madhusudan Auddy?
3. Is the plaintiff entitled to any decree for specific performance of the agreement dated April 12, 1954?
4. Is the plaintiff entitled to refund of Rs. 3,000/- as claimed?
5. Has the Court jurisdiction to entertain this suit?
6. To what relief, if any, is the plaintiff entitled?
5. Thus onus being on the defendant, the defendants examined their witnesses first. Jagat Chandra Dey was first examined on behalf of the defendants and thereafter Madhusudan Auddy, the defendant No. 1, examined himself. This case was heard for several days and while Madhusudan Auddy was under cross-examination it was adjourned from time to time in order to enable the parties to come to a compromise. The compromise, however, failed and the matter came up before me for hearing on February 12, 1964. Mr. B.C. Dutt, appearing for the defendants on that occasion informed the Court that his clients did not want to proceed with the case and Madhusudan Auddy who was under cross-examination also did not wish to proceed any more and submitted that the entire evidence of Madhusudan Auddy as also the evidence of Jagat Chandra Dey be expunged from the records. Accordingly I directed that the evidence adduced on behalf of the defendants be so expunged. Mr. Dutt also asked leave to retire from the suit which was granted. Thereupon the case was heard in the absence of the defendants. The plaintiff went to the box and examined himself and also examined one Birendra Kumar Hazra and one Trilokesh Goswami.
6. The suit being heard in the absence of the defendants my task has become heavier than, it should have been if defended, as an important question arises as to what should be established in a purchaser's suit for specific performance when the defendant has repudiated the agreement for sale; and whether in such a case the plaintiff is relieved of performance of his part of the agreement. Under Section 22 of the Specific Relief Act the jurisdiction to decree specific performance is discretionary. When the discretion is Absolute, in my opinion, it carries with it a special responsibility to see that it is used judiciously. For that reason I shall first consider the facts as have emerged from the evidence and then make my comments even at the cost of repetition.
7. From the evidence of the plaintiff it appears that he has known Mr. B.L. Mukherjee, his present solicitor, for several years. Mukherjee is a neighbour of his. The plaintiff had previously told Mukherjee that he would like to invest some money in Calcutta properties. On April 8, 1954 Mukherjee told him that 'D.C. Dutt, Solicitor, had a client who wanted to sell Calcutta properties and if I liked I could see him.' Thereupon, on the same day i.e. April 8, 1954, he went to see Mr. Dutt at his office and there he got the description of the land for sale and Dutt's proposal on behalf of his client that the property would be sold for Rs. 45,000/- or Rs. 1,500/- per Cotta. He did not know D.C. Dutt before but had only heard of him that he was a solicitor. He agreed to the said proposal and was told by Dutt that his client, the vendor, immediately wanted Rs, 3,000/- to which he also agreed and thereafter returned to his office at Hastings Street. According to the plaintiff, the proposal was made by Dutt on behalf of his client Kashinath Auddy who wanted to sell about 30 Cottas of land at 92 Narkeldanga Main Road at a price of Rs. 45,000/- i.e. Rs. 1,500/- per Cotta and the plaintiff accepted the same. Later on, in the afternoon of the same day, he again went to Dutt's office for the second time when he was shown a typewritten draft approved by Madhusudan Auddy. It should be noted here that Madhusudan throughout acted as the constituted attorney for Kashinath Auddy in this transaction. The plaintiff also saw a signature -- initial M. Auddy, or something like that. Next day i.e., on April 9, 1954 he went to Dutt's office at about 10 a.m., and handed over a cheque for Rs. 3,000/- to Dutt as he was acting as solicitor for the vendor. It was a bearer cheque made out in the name of D.C. Dutt and was duly cashed by his bank. Thereafter he waited at Dutt's office for about two and a half hours for the execution of the document for sale but Madhusudan did not turn up and therefore he returned to his office and afterwards, the same day in the afternoon, at about 4/4.30 p.m., he again went to Dutt's office and was told by Dutt that in the meanwhile Madhusudan had come but he was very busy and that the document would be executed next Monday. The plaintiff never saw Madhusudan Auddy either on the 8th or the 9th April. Dutt on that occasion told him that he would be going away for Easter Holidays and may not be present on Monday next but his assistant T. Goswarni, who was introduced to him, would attend to the execution and registration of the document on Monday next. Accordingly on Monday, April 12, 1954, the document was executed at the office of D.C. Dutt by Madhusudan Auddy as the constituted attorney for Kashinath Auddy but the plaintiff was mot present and the signature of Madhusudan Auddy was not made in his presence. On the same day the agreement was also registered but he was not present at the registration office. According to the plaintiff Dutt acted for him as he had asked Dutt to do so on April 8, 1954 when he accepted the proposal of Dutt made on behalf of his client Kashinath Dutt and thereafter Dutt acted as solicitor for both the plaintiff and Madhu-sudan Auddy, the conatitued attorney of Kahsinath Auddy, in the sale transaction.
8. The plaintiff next stated that after the execution of the agreement he met Dutt for the first time towards the end of April or early May, 1954 at his office and was shown a letter dated April 30, 1954 which Dutt had received from a pleader of Madhusudan Auddy containing certain allegations regarding the transaction. Dutt also showed him copies of letters written by him on his behalf to various parties including letter dated April 27, 1954 asking for the title deeds from Madhusudan Auddy.
9. As regards the consideration money his evidence is that after payment of Rs. 3,000/- he had the balance sum of Rs. 42,000/- in his house in cash although he had a banking account but he had no documents in writing to show that he had the amount of Rs. 42,000/- in cash.
10. As regards the readiness and willingness,the only evidence is to be found in the followingquestions and answers which I should like to quotebelow:
Q. 123. Were you ready and willing to pay?
Q. 145. What was your attitude so far that part of yours is concerned?
A. When the defendant did not complete the transaction -- complete his part of the agreement -- I asked Mr. D.C. Dutt to file a suit and the suit was filed.
11. I shall now analyse the evidence of T. Goswami, assistant to Mr. D.C. Dutt, who also acted in the matter.
12. Goswami admitted that Dutt acted on behalf of the plaintiff but he contradicted the-plaintiff by saying that he was positive that Dutt did not act for Madhusudan Auddy. It cannot be doubted that the proposal first came from D.C. Dutt who made it on behalf of his client Kashinath Auddy; and Madhusudan Auddy throughout acted as the constituted attorney for Kashinath.
13. Regarding the execution of the agreement for sale Goswami's testimony is that he knew about the 'draft' of the agreement of sale, Ex. J. About 4/5 days before this agreement was signed he saw Madhusudan Auddy in the chamber of D.C. Dutt and he was also present there. Dutt got out a form of agreement for sale -- completed the draft in the presence of Madhusudan Auddy and after some discussion it was approved by Madhusudan -- and then it was sent to the typist for engrossment. He categorically stated in Q. 53 that before the draft was sent to the typist for engrossment it was approved by Madhusudan Auddy in his presence. He was in charge of the document and it was engrossed on the same day i.e. April 8, 1954. After the draft was approved it was straight away sent by D.C. Dutt himself to the typist for engrossment. Goswami next stated that he himself compared the original agreement with the draft. Afterwards when he was asked by counsel whether there were any alterations from the draft in the original, Goswami stated 'In Clause 2 there is a provision for the delivery of the title deeds -- 'within 3 days from the date of this agreement' -- in the draft it was 3 days and in the original it has been changed into one month in my handwriting when it was being signed by Madhusudan Auddy.' (Q. 103).
14. In Q. 105 Goswami stated 'when it was being compared on the day of the execution, Madhusudan had told me that this should be one month instead of 3 days which was the agreed term already'. In qq. 151, 152, 156 and 157, however, he contradicted himself and denied having said that Madhusudan asked for a longer period -- instead of 3 days he wanted one month. He further contradicted himself by saying that one month was put on his own and at the request of nobody (Q. 152). Then again Goswami's answer to Q. 156 (put by me) was extremely strange. I quote Q. 156; 'When this alteration from 3 days to one month was made who were present?' Answer was 'Mr. Dutt, myself and may be Saral Chatterjee. It was made in the afternoon. Madhusudan was not there at that time.'
15. Now this is very strange indeed. His previous answer was that the alteration was made at the time of the execution of the agreement i.e., on April 12, 1954. If that be so Dutt could not have been present because he was away on holidays at that time. One of these answers must be-untrue.
16. Lastly, in Qq. no to 112 Goswami admitted that the draft (Ex. J) did not mention the property in suit i.e., 92 Narkeldanga Main Road when he was asked to see the document if it was so mentioned there. He further admitted that the sale of the Narktldanga property was not approved by this draft. Now, this evidence, in my opinion-knocks the bottom out of this case. Later on he tried to explain away by saying that he had forgotten that the description of the property was taken from another original deed of partition but that in my opinion does not explain the absence of any mention of the property in the draft. I reject this explanation of Goswami as his testimony cannot be relied on.
17. Looking at the evidence it is clearly manifest that the entire transaction was not a very clean one. B.L. Mukjierjee started the ball-rolling when he asked the plaintiff on April 8, 1954 to see D.C. Dutt solicitor whose client had a Calcutta property for sale. Immediately the plaintiff saw Dutt at his office at 12/12.30 noon on the same day. Dutt made his proposal on behalf of his client Kashinanth Auddy. The plaintiff accepted the proposal. The same day i.e., on April 8, 1954 at 4/4.30 p.m.. a draft agreement was prepared and thereafter approved by Madhusudan. On the 8th April i.e., the same day the plaintiff asked Dutt to act as his solicitor also. The draft was engrossed immediately. There cannot be any doubt that Dutt acted as solicitor for both the vendor and the purchaser in this transaction. On the 9th April, 1954 the plaintiff went to Dutt's office with a bearer cheque for Rs. 3,000/-and waited there till 12.30 noon for the execution of the agreement for sale but Madhusudan did not turn up. Thereupon Dutt told the plaintiff that the transaction would be done later on and he would soon know the reason of the delay. The plaintiff returned to his office and thereafter he went back to Dutt's office in the afternoon at 4/4.30 p.m. and was told that in the meanwhile Madhusudan had come but he was too busy and that the document would be executed on Monday next. He was further told that Dutt might not be present as he was likely to go away for Easter holidays but Goswami his assistant would atend to the execution of the agreement. On Monday next Dutt was away on his holiday and the agree-ment for sale was executed by Madhusudan Auddy. The plaintiff was not there when Madhusudan signed the agreement nor was he present at the registration office when the agreement for sale was registered.
18. I am not satisfied with the undue, haste and the manner in which the agreement for sale was executed. Dutt acted for both as solicitor. Then it appears that the agreement for sale differs from the draft (Ex. J) in that the property in question is not even mentioned in the draft. Therefore, approval of the draft had no meaning or effect with regard to the sale of the property in question. I cannot accept Goswami's later explanation that he had forgotten that the particulars of the property were obtained from a partnership deed which, however, has not been produced or proved. The draft (Ex. J) thus cannot possibly relate to the 92 Narkeldanga property. The whole transaction, it seems to me, was conducted by D.C. Dutt acting as solicitor for both and so manipulated that Madhusudan and the plaintiff would never have any opportunity of meeting each other. Next, the time fixed for delivery of the document of title was altered from 3 days to one month. The evidence in this respect is not very satisfactory. Goswami's evidence is unacceptable as he has repeatedly contradicted himself and has not told the truth and as such I am unable to put any reliance on his testimony. Further I find that the draft and the engrossed agreement differ in material particulars. Therefore, I am inclined to hold that the engrossed agreement for sale was not prepared from the approved draft, Ex. J. Then what is the position? The only answer possible is that by the 'draft' there was no agreement for sale of 92 Narkeldanga Main Road property and the engrossed agreement for sale was not approved nor was it prepared from the draft Ex. J. but it was signed by Madhusudan as engrossed. The circumstances surrounding the execution of the agreement are not at all satisfactory. I reject all evidence adduced in respect of the preparation of the draft and its alleged approval by Madhusudan Auddy. The plaintiff has no doubt proved in evidence this draft, Ex. J. which has no connection with the sale of 92 Narkeldanga Main Road in support of his claim. This conduct of the plaintiff in my opinion, cannot possibly be justified; and he has not come with clean hands. Thus the agreement for sale, the specific performance of which is sought in this suit, in my opinion, cannot be said to be entirely free of doubtful origin. This is an aspect which should not be lost sight of in deciding this case.
19. Now I shall examine what was done by the plaintiff, after the execution of the agreement for sale on April 12, 1954 and what different steps did he take in performance of his part of the contract. The only act done on his behalf by his solicitor was that Dutt wrote a letter on April 27, 1954 to Madhusudan asking for the title deeds of the property in question. It appears that Du tt also wrote three other letters addressed to the Calcutta Corporation thereby enquiring about, arrears of tax, if any, and one letter to the Improvement Trust enquiring about acquisition alignment, if any in respect of the property in question.
20. It appears also that on April 30, 1954 the defendant by his lawyer's letter refused to deliver the documents of title on the ground that the agreement of sale was obtained fraudulently.
21. Such is the position in this case.
22. The question is, has the plaintiff established his case of specific performance and is he entitled to a decree for specific performance which is the comprehensive issue in this case (Issue No. 3).
23. Now it is well settled that in cases of specific performance of a contract it is for the plaintiff to prove readiness and willingness as a fact before he can succeed. This is a condition precedent to his success and the onus is heavily upon him.
24. It is also well settled that a plaintiff in an action for specific performance of a contract for the sale of land must plead that he has been, and still is ready and willing to carry out the contract; and repudiation of the contract by the defendant does not relieve the plaintiff from this obligation.
25. Thus it appears to me that even when the contract is repudiated by the defendant the plaintiff has not only to plead but also must necessarily prove that he had been and is ready and willing to perform his part of the contract.
26. It is further well established that a plaintiff who seeks specific performance of a contract has to show first that he has performed or has been ready and willing to perform the terms of the contract on his part to be then performed and, secondly, that he is ready and willing to do all matters and things on his part thereafter to be done. If there is a default on his. part in either of these respects, that furnishes a ground upon which the plaintiff's claim may be resisted. (See Fry's Specific Performance, 6th Ed. p. 435, Sections 922, 933; Also Manik Chandra v. Abhoy Charan, 24 Cal LJ 90 : (AIR 1917 Cal 283); Nalini Nath Mitra v. Bipin Behari, : AIR1956Cal525 .
27. In Ardeshir H. Mama v. Flora Sassooa, 55 Ind App 360 at p. 372: (AIR 1928 PC 208 at p. 216) the law has been stated thus:
'.........in relation to a contract to which the equitable form of relief was applicable, a party thereto had two remedies open to him in the event of the other party refusing or omitting to perform his part of the bargain. He might either institute a suit in equity for specific performance, or he might bring an action at law for the breach. But -- and this is the basic fact to be remembered throughout the present discussion -- his attitude towards the contract and towards the defendant differed fundamentally according to his choice.
Where the injured party sued at law for a breach, going to the root of the contract he there-by elected to treat tile contract as at an end and himself as discharged from its obligations. No further performance by him was either contemplated or had to be tendered. In a suit for specific performance, on the other hand, he 'treated and was so 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 bearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable1 dismissal of his suit.'
28. From the evidence it appears that the only step taken on behalf of the plaintiff in this case was that D.C. Dutt, his solicitor, by letter dated April 27, 1954 requested Madhusudan Auddy to make over to him the documents and papers relating to the property in question in terms of Clause 2 of the agreement for sale to enable him to proceed with the matter. Butt also wrote 4 other letters, 3 to the Corporation of Calcutta and one to the Improvement Trust thereby making enquiries about arrears of tax, if any, and about acquisition alignment, if any, but I do not think any importance can be attached to these 4 letters. In reply to Dutt's letter dated April 27, 1954 Madhusudan by his pleader's letter dated April 30, 1954 wrote that as the agreement for sale was obtained fraudulently no question of supplying the deed of title arose. I shall accept that the defendant by this letter irrevocably repudiated the agreement for sale. No deeds of title were also delivered to Dutt within one month in terms of Clause 2 of the agreement or at all. After this the plaintiff without doing or taking any other steps in the matter filed this suit on June 10, 1954 for specific performance of the agreement for sale.
29. Question is has the plaintiff performedhis part of the contract; and whether readinessand willingness of the plaintiff, have been established?
30. Under the first Clause of the agreement for sale the purchaser agreed to purchase the property subject to the approval of the vendor's title by the purchaser's solicitor Mr. D.C. Dutt. There is no evidence in this case that the title of the vendor in respect of the property in question has been approved by Dutt who has since died. It s said that by not delivering the title deeds in terms of Clause 2 of the agreement the defendant Madhusudan by this conduct made it impossible, for the purchaser's solicitor to approve the title of the vendor and the defendant cannot take advantage of his own wrong. I cannot agree, because it is not a question of taking advantage of one's own wrong, Question is where the defendant has repudiated the contract and refused to perform his part of the bargain, whether the plaintiff is relieved of performance of his part of the contract. The answer is --.No. Because law is well settled that in, such a case the plaintiff has two remedies open to him. He might sue in equity for specific performance or he might sue at law for the breach. If he sues at law he thereby elects to treat the contrast as at an end and himself as discharged from its obligations and no further performance by him is either contemplated or is to be performed. On the other hand, if he sues in equity for specific performance he treats and is so required by the Court to treat the contract as still subsisting. He has in that suit to allege and if the fact is traversed he is 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 brings with it the inevitable dismissal of his suit.
31. In this suit readiness and willingness on the part of the plaintiff has been denied by Kashi-nath in his written statement. One of the substituted defendants has also adopted the written statement of Kashinath Thus it appears that the plaintiff must prove continuous readiness and willingness to perform his part of the agreement from the date of the contract to the date of the hearing before he can succeed in this action'. It cannot be controverted that the onus is bn the plaintiff. Under the agreement, the purchase being subject to approval of the purchaser's solicitor Mr. D.C Dutt (a named person), it is an essential condition which must be performed by the plaintiff purchaser. Apart from writing the letter dated April 27, 1954 to the defendant through D.C. Dutt the plaintiff has done nothing to express his readiness and willingness to perform his part of the contract.
32. That the purchaser is willing and ready to complete the transaction is in the first instance to be intimated by him is now well settled (See Prasanta Kumar Sur v. International Contractors, Ltd., (S) AIR 1955 Cal ror at 103, para 13). At no point of time in the instant case, the purchaser intimated to the vendor or his pleader his readiness and willingness to perform his part of the contract and to complete the transaction in terms of the agreement. There is no evidence also of continuous readiness and willingness to perform on the part of . the plaintiff.
33. It may be recalled at this stage that Mr. D. C, Dutt acted both for the purchaser and the vendor in this transaction of sale of the property in question. The proposal for sale, was first made by Dutt on behalf of his client Kashinath on April 8, 1954. Then on April 27, 1954 Dutt acting for the purchaser wrote to Madhusudan asking for documents of title. Whether at that point of time Dutt was still the solicitor of the vendor is not known. Nor is it known at what point of time Dutt ceased to be the solicitor of the vendor if at all. That the vendor Madhusudan was known to D.C. Dutt is established by the evidence of Goswami. Madhusudan used to visit Dutt's office since 1948/9 in connection with some partition suit with regard to his father's estate (Goswami Q. 20 in chief) and Dutt acted for him in the partition proceedings. It is indeed curious that Dutt should suddenly change sides and act for the purchaser whom he did not know until April 8, 1954 and go against his old client Madhusudan.' In the circumstances it is very likely that Dutt must have had an idea of the title of the vendor in respect of the property in question. inasmuch as he acted in the partition proceedings in respect of the estate of Madhusudan's father. He was fully aware of the terms of the agreement and particularly that the purchase was subject to his approval of title but he did not approve; nor did he ever intimate to the vendor about the readiness or willingness on the part of his client, the purchaser. Unfortunately he has since died and from the evidence it appears that after Goswami who acted for the purchaser for a while, the plaintiff has now for his solicitor Mr. B.L. Mukherjee from whom the whole thing first started. The circle now seems to be complete.
33A. Reverting to the question of readiness and willingness of the purchaser to complete the transaction which is at the first instance to be intimated by him to the vendor, it appears that no steps were taken by or on behalf of the purchaser. No draft conveyance was prepared and sent by the plaintiff or by his solicitor to the defendant, No intimation was given that the title to the property was approved or acceptable by the purchaser. No intimation was given to the' defendant by the plaintiff or his solicitor that his client was ready and willing to have the purchase complete on payment of Rs. 42,000/- being the balance of the price. There is no evidence that throughout the plaintiff had had the balance of Rs. 42,000/-with him and still has it and he is ready and willing to pay it in performance of the contract on his part. The only evidence on record is that at the time of the contract he had Rs. 42,000/-. This in my. opinion, is no evidence of readiness and willingness as is understood in actions for specific performance. In the plaint also the plaintiff has not stated that he has accepted the title of the property.
34. Counsel for the plaintiff contended that actual tender of the purchase price is not necessary when the defendant has repudiated his contract because tender would have been a useless formality. He relied on the Supreme Court decision in International Contractors Ltd. v. Prasanta Kumar Sur, : 3SCR579 in support of his contention. This Supreme Court decision has also decided that
'As the appellant had repudiated the contract and had thus failed to carry out his part of the contract it was open to the defendant to sue for its specific performance. Thus it appears that the suit is competent.'
I respectfully agree with this decision. The same view, it appears, has also been expressed in 55 Ind App 360 : (AIR 1928 PC 208) (Supra) by the Privy Council that in relation to a contract to which equitable form of relief was applicable a party thereto had two remedies open to him in the event of the other party refusing or omitting to perform his part of the bargain. He might either institute a suit in equity for specific performance or he might bring an action at law for the breach. But the question is whether the plaintiff is relieved of performance of his part of the contract where the defendant has repudiated. I think not. The Supreme Court has nowhere stated in this case relied on by the plaintiff that where the contract is repudiated by the vendor defendant the plaintiff purchaser is relieved of performance of the contract in a suit for specific performance. On the other hand, it appears frank the facts of the Supreme Court case under discussion that there the purchaser's solicitor not only wrote that the purchaser was ready and willing to have the purchase completed as early as possible on payment of Rs. 10,001/- but he sent along with the letter a draft conveyance for approval, but all that was subject to the result of a search as to the encumbrances, if any, created by the vendor. Thus, it is manifest that the purchaser there had clearly established his willingness and readiness by the said letter. The only question was whether in the circumstances of that case actual tender was necessary and it was held that it was not as that would be a mere formality as it was bound to be refused. This decision, to my opinion, does not help the plaintiff in this case. In the instant case, however, there is no such evidence on record.
35. In the light of the above discussion I am clearly of the opinion that in this case the plaintiff' has failed to establish his readiness and willingness to perform his part of the contract and having thus failed to make good the averment in his plaint, the suit is bound to fail. Issue No. 3 is answered in the negative.
36. Issue No. 2 -- The onus is/ on the defendants but the defendants have failed to establish-the issue. This issue is answered in the negative.
37. Issues Nos. 2 and 4 -- The plaintiff has proved the payment of Rs. 3000/-. This sum, in my opinion, is refundable in the facts and circumstances of this case.
38. In the result, the plaintiff's suit so far as his claim for specific performance is concerned, is dismissed. The alternative claim made by the plaintiff in his plaint for refund of Rs. 3000/- is allowed. There will be a money decree for Rs. 3000/- in favour of the plaintiff, interest on judgment at 6% per annum. There will be no declaration of charge on the property for the reasons and circumstances hereinbefore stated.
39. As the plaintiff has failed on the main issue, I will only allow him costs of one day's hearing. He will be entitled to the costs for one day.