1. This appeal arises out of a suit for specific performance of a contract for sale of a garden called the ' Kundu' garden at Howrah. An agreement was entered into on the 10th June, 1919, between the plaintiff (the vendee) now represented by the Official Assignee, and the defendant and the terms of the contract are embodied in the receipt executed by the defendant (the vendor) which runs thus:
Received from Babu Chaturbhuj Dosa the sum of Rs. 2,001 (rupees two thousand and one) only as earnest-money and in part payment of purchase-money in respect of my 22 bighas of land including land covered by water more or less at Salkea on Grand Trunk Road known as ' Kundu Bagan ' which I have agreed to sell and he has agreed to purchase free from all incumbrances but subject to approval of title by his solicitors Messrs. Khaitan & Co. at the rate of Rs. 150 (one hundred and fifty) per cottah. I have agreed that all necessary parties will join in the conveyance and that the sale will be completed within one month from the date of delivery of title deeds. Time being the essence of the contract.
2. The title deeds were sent to the purchaser's solicitor's, on the 12th June, 1919. Messrs. Chatterjee & Co., were the vendor's solicitors and Messrs Khaitan & Co. were the solicitors of the vendee and for shortness' sake we shall in our judgment refer to them as Chatterjees and Khaitans. There was some correspondence between the solicitors of the parties about the Surveyor who has to measure the land-Ultimately, it was agreed that there should be two Surveyors one Mr. C. K. Sarkar, for the vendor and Mr. Johnstone, for the purchaser, and that they would measure the land on the 5th July, 1919. On that day some measurement was made which, however, was not completed because there was jungle on the land. It is said on behalf of the vendors that there were merely shrubs on the land. Whether they were shrubs or jungle the measurement was not completed on that day, because the land was not cleared of them. The Khaitans, on the 9th July, 1919, wrote to the Chatterjees that the shrubs should be cleared, and on the 11th July, they again enquired whether the jungle had been cleared or not. The Chatterjees replied that the jungle bad been cleared by the vendor on 'last Sunday,' that is, the 6th July. The evidence upon the question whether the further measurement was to be taken up within two or three days from the 5th July, or was to be made after the purchaser's Solicitor's received intimation of the jungle having been cleared is conflicting. There is the evidence of Mr. Johnstone's man, Pramatha Nath Mukerjee, who was examined on behalf of the plaintiff, and evidence of Mooktaram Ghose, an assistant of the defendants' surveyor, Mr. Sirkar, on the point. This much is clear from the evidence that the Survey could not be completed on the 5th July, and having regard to the fact that in the account-books of the defendant (the vendor), the expenses for clearing the jungle are entered on dates between the 6th July, 1919, and that Rs. 38-10-0 was paid to 103 labourers at the rate of 6 annas per day for each, as appears from Exh. D (the account-books of the defendant) the defendant's story that the jungle had been cleared on the 6th July, cannot be accepted. On the 12th July, the Chatterjees wrote to the Khaitans that their client had arranged with the Surveyor, Mr. Sirkar, to resume the Survey on Monday (the 14th July). Nothing appears to have been done on the 14th July, and on that day the Chatterjees wrote to the Khaitans that the time limited by the agreement had expired on Saturday the 12th; that the defendant was prepared, as a matter of grace, to allow the plaintiff to complete the measurement by 'today,' and that as the plaintiff had not availed himself of the period of grace, the defendant would stand upon his legal right to terminate the contract and asked for return of the title-deeds. The Khaitans evidently ignored the above letter and on the 17th July, sent 'requisition on title.' On the 23rd July, Khaitans wrote to Chatterjees that his client 'has always been and still ready to complete the purchase.' On the same day the Chatterjees asked Khaitans for return of documents without further delay, and the latter inquired whether they were required for drawing the conveyance.
3. It appears that on the 23rd July, Khaitans received a letter from their Surveyor Mr. Johnstone, that the area of the land was 23 bighas 3 cottas 30 square feet and on 25th July, wrote to Chatterjees that the area was 33 bighas 3 cottas 30 square feet and enquired whether their Surveyor agreed with the area. This (33 bighas) was evidently a slip. On the 26th July, Khaitans sent a draft conveyance for approval of Chatterjees ''subject to our requisitions.' On the 29th July, 1919, the Chatterjees wrote to the Khaitans that the vendor would be prepared to accept the area given by the purchaser's Surveyor, viz., 33 bighas 3 cottas 30 square feet and to do all other things necessary for the completion of the transaction provided the purchase was completed within a fortnight of the approval of the draft conveyance, time being of the essence of the contract. This was stated to be 'without prejudice.' On the next day, that is, on the 30th July, the Khaitans wrote to the Chatterjees as follows:-'We accept your client's offer of completing the purchase within a fortnight after the approval of the draft conveyance. The area given by our Surveyor is 23 bighas 3 cottas 30 square feet' to which the Chatterjees replied as follows:-'Our letter of yesterday was written on the basis of the measurement given, in your letter of the 25th instant, viz., 33 bighas 3 cottas and 30 square feet we are surprised to find that you say in your present letter that the area is 23 bighas 3 cottas 30 square feet' and that, in the circumstances, they would forward a copy of the letter to their clients and that unless confirmed by their clients 'our letter of yesterday, as is obvious, will be inoperative.' Some further correspondence followed, and on the 9th October, 1919, the Khaitans wrote to the Chatterjees regretting unnecessary delay and intimating that if the' latter did not complete the sale within a week, the plaintiff would institute a suit for specific performance. The correspondence ended on the 21st October, 1919, on which day the Chatterjees wrote to the Khaitans that there was no subsisting contract between the purchaser and their clients and that further correspondence would be wholly useless.
4. The suit was instituted on the 22nd November, 1919. The suit was decreed by the Court below, and the defendant has appealed to this Court.
5. The first ground taken in the appeal is that the contract was not specifically enforceable because there was no mutuality, and that for two reasons. The first is, that the sale was to be subject to the approval of the Solicitors and, secondly, that the plaintiff had become an insolvent. With regard to the first, the agreement for the sale of the property, 'subject to the title being approved by the Solicitors,' of the purchaser was perfectly valid agreement, and with regard to the second, the bankruptcy took place after the suit had been decreed by the Court below.
6. The second contention is that specific performance ought to have been refused on the ground that the plaint was not a proper plaint for specific performance because the plaintiffs prayed for an enquiry into the defendant's title to the property and for a decree for sale if the title was approved by the plaintiff's Solicitors. But it is open to a party to claim an enquiry into the title of the vendor to the property, only that he must accept the title as it is, if he chooses to purchase the property. (See Williams on Vendor and Purchaser, 3rd Edition, page 114). In the present case the purchaser by taking a decree has accepted the title.
7. The third ground taken is, that the question of waiver set up by the learned Subordinate Judge does not arise at all, and that, on the other hand, it was absolutely necessary for him to decide the last portion of issue No. 3, and that if there was no evidence on the point the suit should have been dismissed. Now, the fourth paragraph of the plaint set up an agreement for an extension of time and an issue was raised, namely, the third issue, on the point. The learned Subordinate Judge has dealt with the question of waiver arid the question of extension of time together; and the question of waiver of the right of the vendor to have the contract completed within the time fixed is treated as substantially the same as the question of extension of time; as would appear from the concluding portion of the decision on issue No. 3.
8. The fourth ground is, that the learned Subordinate Judge is wrong in laying down as a proposition of law that, even if time is originally of the essence of the contract, the essentiality is destroyed by the extension of time, relying upon the case of Webb v. Hughes  10 Eq. 281. In that case it was observed that, ' if time be made the essence of the contract, that may be waived by the conduct of the purchaser; and if the time is once allowed to pass, and the parties go on negotiating for completion of the purchase then time is no longer of the essence of the contract.' That case is distinguishable because it was not a case where the time was extended for a definite period by agreement between the parties. In the case of Barclay v. Messenger  43 L.J. Ch. 449, Jessel, M. E., held that 'a mere extension of time, and nothing more, is only a waiver to the extent of substituting the extended time for the original time, and not an utter destruction of the essential character of the time. That case was followed in Haji Fakir v. Shaikh Abdulla  12 Bora. 658. Although that is so, in the present case the time was not extended only for two days (from the 12th to the 14th July) as contended on behalf of the appellant. In the letter, dated the 12th July by the Chatterjees to the Khaitans, it is stated that the Survey would be resumed on the 14th July. It does not mean that time for completing the contract was to be extended by two days only, but that the Survey was to be resumed on the 14th July and the subsequent correspondence goes to negative the case that time was extended by two days only. We, therefore, think that, although the learned Judge is not right in the view he has taken of the law, it does not affect his decision.
9. The fifth ground taken is that the Subordinate Judge has taken a wrong view of the evidence in holding that the breach of contract was on the part of the defendants. We have referred to the correspondence and we have been shown that the land could not be surveyed within the time fixed because the jungle had not been cleared by the vendor.
10. The learned Vakil for the appellant has contended that Mr. Johnstone, the Surveyor, did not go upon the land at any time after the 5th July and that he submitted his report on the 25th July without going on the land again, which shows that the non-clearance of jungle was merely an excuse set up by the plaintiff. But there can be no doubt upon the evidence that the land could not be surveyed because the jungle was not cleared before the 12th July. The learned Subordinate Judge has discussed the evidence and has come to the conclusion that there were no laches on the part of the plaintiff and that the contract was not completed within the time fixed owing to the default of the defendant. The evidence has been discussed before us, and we are unable to differ from the view taken by the Court below.
11. Then, it is contended that the lower Court is wrong in holding that the preparation of a plan was necessary. Some authorities have been cited to us on the point, but it is unnecessary to discuss them having regard to the fact that in the present case, the parties contemplated preparation of a plan, as the letter dated the 21st June, 1919, by the Khaitans to the Chatterjees expressly asked the latter to appoint a time for a Survey of the garden plot and the preparation of a plan.
12. The sixth ground taken is, that the plaintiff having become an insolvent, the decree for specific performance cannot be enforced and the learned Vakil has relied upon the principle of mutuality. There is no doubt that if the plaintiff bad become a bankrupt before the institution of the suit, he could not have enforced the contract. We need only to refer to Fry on Specific Performance, 6th Edition, Article 949 and to Halsbury's Laws of England, Vol. 27, page 58. In the present case, however, the bankruptcy took place after the suit had been decreed.
13. The learned Vakil for the appellant relied upon Fry on Specific Performance, para 951, where the learned Author refers to Section 55 of the English Bankruptcy Act, 1883 (the provisions of which correspond to a certain extent to the provisions of Section 62 of the Presidency Towns Insolvency Act), and says: ' Accordingly specific performance cannot be enforced against a purchaser's trustee in bankruptcy without his consent.'' Section 62 of the Presidency Towns Insolvency Act upon which also reliance is placed on behalf of the appellant runs as follows:
Where any part of the property of an insolvent consists of land of any tenure burdened with onerous covenants, of shares or stocks in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act or to the payment of any sum of money the Official Assignee may, notwithstanding that he may have endeavoured to sell or have taken possession of the property, or exercised any act of ownership in relation thereto, but subject always to the provisions hereinafter contained in that behalf,' by writing signed by him at any time within twelve months after the insolvent has been adjudged insolvent, disclaim the property.
14. It is contended that the principle of mutuality should also be extended after the decree for specific performance has been passed. But, in the first place, specific performance may be enforced against the trustee in bankruptcy of a vendor: See Pry on Specific Performance, paragraph 951. In the next place, in the present case, as already stated, the bankruptcy of the purchaser took place after the suit had been decreed, and the money had been deposited by the purchaser. No authority has been shown to us for holding that the principle of mutuality applicable to suits for specific performance of contracts before the institution of a suit, applies to the parties after the suit has been decreed and the money has been deposited by the purchaser before he becomes a bankrupt.
15. The last contention is that the decree for specific performance should not be allowed to be enforced for two reasons. The first is, that the time appointed by the Court below for payment of the money by the purchaser had expired before the money was deposited, and the Court had no power to extend the time fixed by the decree for the purpose. The question, whether the Court had the power to extend the time for payment fixed by the decree or not, is one which cannot be gone into in this appeal but may be raised by the appellant in proper proceedings. The second ground is that the plaintiff having withdrawn the money deposited by him in the Court below after the appeal had been preferred, the decree has become infructuous and the Official Assignee is not entitled to enforce the decree for specific performance. It appears that after the appeal had been filed and before the plaintiff became bankrupt he applied to this Court for taking back money which had been deposited by him in the Court below. This Court thereupon made an order that the plaintiff might withdraw the money at his own risk. The question, what is the effect of such withdrawal of money, however, may be raised by the plaintiff, when, and, if, the Official Assignee applies for enforcement of the decree for specific performance.
16. The learned Vakil for the Official Assignee intimated that his client is ready to deposit the amount decreed in the Court below, if so ordered by this Court. We cannot make any such order, as the learned Pleader for the defendants says that they would oppose any application for depositing the amount decreed by the Official Assignee and for enforcement of the decree for specific performance.
17. In the result, the appeal fails and it is dismissed with costs. The respondent does not press the cross-objections. It is accordingly dismissed. We make no order as to cost.