1. This is an appeal by the defendant in a suit for specific performance of a contract of sale, made orally on the 1st February 1911. The price was fixed at Rs. 400; one rupee was paid on the data of the agreement, which was to be carried out and completed within ten days. The case for the plaintiff is that on the 5th February, he paid a second instalment of the consideration, namely, Rs. 104 and, that, although he subsequently offered to pay the balance, Rs. 295, the defendant did not accept the money and wrongfully refused to execute the conveyance. The defendant denies the alleged payment of Rs. 104, and the Courts below have concurrently found in his favour on this point. He contends that this is not a case where a Court of Equity will decree specific performance, for the plaintiff has failed to perform his part of the obligation, and never tendered Rs. 399 as the balance of consideration. The Trial Court gave effect to this contention, refused specific performance and made a decree for refund of one rupee. The Subordinate Judge has reversed this decree and has held the plaintiff entitled to specific performance as soon as he pays into Court Rs. 399 to the credit of the defendant. On the present appeal, the decision of the Subordinate Judge has been assailed as erroneous in law.
2. The principle applicable to cases of this description is well-settled. The plaintiff who seeks specific performance of the contract has to show, first, that he has performed or been ready and willing to perform the terms of the contract on his part to be then performed; [Bungscedhur Mullick v. Calcutta Auction Company 1 Hyde 45. Ram Tunoo Koondoo v. Mullicka Dossee 14 W.B. 338. Ghillis v. McGhee (1862) 13 Ir. Ch. R. 48. and secondly, that he is ready and willing to do all matters and things on his part thereafter to be done [Walker v. Jeffreys (1842) 1 Hare 341 : 11 L.J. Ch. 209 : 6 Jur. 336 : 66 E. R. 1064 : 58 R. R. 90. Vishvanath Atmaram v. Bapu Narayan 1 B. H. C. R. 262.]. A default on his part in either of these respects furnishes a ground upon which the action may be resisted [General Bill-posting Company v. Atkinson (1909) App. Cas. 118 at p. 122 : 78 L.J. Ch. 77 : 99 L.T. 943 : 25 T. L.R. 178.]. In the case before us, it was obligatory upon the plaintiff as the purchaser to tender the balance of the purchase-money, namely, Rs. 399 to the vendor-defendant on or before the 11th February 1911. This he did not do : consequently, there was a default on his part in the performance of an essential term of the contract. But he contends that this default is immaterial, for a tender of what has now been found by the Courts below to be the true amount of the unpaid purchase-money, would have been of no avail because, as the Subordinate Judge has found, the defendant was anxious to resile from the contract and would have unquestionably refused to accept the money. The argument in substance is that non-performance on the part of the plaintiff is really attributable to the default of the defendant, and the defence is not sustainable, because, as pointed oat in Hotham v. East India Co. (1787) 1 T. R. 638 : 1 R. R. 333 : 99 E. R. 1295 non-performance of the plaintiff is excused when that has resulted from the default of the defendant. Here, however, the default on the part of the plaintiff was not due to default on the part of the defendant. The plaintiff defaulted to tender the balance of the consideration; all that is urged is that tender of the full amount would never have been accepted by the defendant. That, if true, does not, in our opinion, improve the position of the plaintiff. There was a breach of obligation on his part, and he is, consequently, not entitled to the assistance of the Court.
3. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and that of the Court of first instance restored. This order will carry costs both here and in the Court of Appeal below. The amount, if any, deposited by the plaintiff pursuant to the decree of the Subordinate Judge will be returned to him.