1. plaintiff appeals against a decree of the Subordinate Judge of Howrah dated the 29th June 1923 dismissing his suit for specific performance a contract for sale of lands and in the alternative for damages, which was ultimately, in the circumstances which had happened, limited to a suit for damages only for breach of contract. The facts are these: The defendant by a contract dated the 27th March 1920 agreed to sell to the plaintiff 74 and odd cottas of lands in Howrah at the rate of Rs. 9,001 per cotta. It is admitted that, there was a supplementary verbal contract when it was found that the mortgaged properties together with other properties had been advertised for sale in execution of a mortgage-decree dated November 13, 1917 obtained by the Maharajah of Darbbanga in the Original Side of this Court. By this latter contract the plaintiff undertook, to pay off the, entire mortgage-decree. This verbal contract was admitted by the plaintiff as will appear from what follows later on. The plaintiff brought this suit oh the 8th May 1920. The properties were sold on July 14, 1920 and then the claim was limited to a prayer for damages only. The defence was a prolix one. It denies the validity of the contract, although its execution was admitted. The Issues Nos. 3 4 and 5 embody the main points of controversy between the parties.
2. The learned Subordinate Judge found that the contract was vitiated by undue influence, and that the plaintiff failed to perform his part of the contract and that the plaintiff was not in a position to raise sufficient money to carry out the term of the contract. He also found that the suit filed on the 8th May was premature. In the result the suit was dismissed with costs. Against this decree the present appeal has been filed.
3. Before I deal with the points which arise in this appeal I shall very briefly state the facts and circumstances which are admitted to have transpired between the date of the agreement, i.e., 27th March 1920 and the date of the institution of this suit, i.e., the 8th of May of the same year.
4. After the execution of the agreement, a, further verbal arrangement, taking the version admitted by the plaintiff, took place to the effect that the plaintiff should pay off the mortgage-decree and until the sale of the Howrah properties, the title-deeds should be held by the plaintiff as security for the advance and after the sale of the Howrah properties, the title-deeds of the other properties should be held by the plaintiff byway of security for the amounts paid in excess of the sale price.
5. On the 27th the attorney for the defendant wrote to B.N. Bose & Co., the attorneys for the mortgagee to deliver the title deeds to the plaintiff's attorney on his accountable receipt. After some correspondence the Receiver and the mortgagee's attorney declined to part with the title-deeds', or to postpone the sale.
6. On the 8th April, 1920, Mr. P.N. Sen, the attorney for the plaintiff, wrote to Messrs. B.N. Bose & Co., a letter in which he enquired what the actual amount due to the Maharaja was and also stated that, his client was prepared to pay the whole of the purchase-money in satisfaction of the entire amount due under the mortgage with interest and costs, In reply to this letter Messrs. B.N. Bose & Co. wrote that the mortgagors had already had the account of the money due under the mortgage.
7. On the 26th of April, Mr. P.N. Sen wrote to the defendant a letter which stated that 'In view of your present intention of getting out of the agreement, I have to give you notice that my client will take legal steps to enforce the agreement without any further reference unless you immediately declare that you have no intention to go back on the agreement and name your solicitor, etc.'.
8. On the following day the plaintiff's attorneys wrote to the Receiver Mr. 8. N. Bose informing him that his client was willing to pay the price agreed under the contract if the Receiver would agree to sell the Howrah property to the plaintiff and he also offered on behalf of his clients to pay off the entire sum due under the mortgage on condition that the Receiver should transfer the mortgage to the plaintiff. To this the reply was a curt refusal.
9. On the 29th April Mr. P.N. Sen wrote to the defendant in continuation of his letter of the 26th that the plaintiff had accepted the title of the defendant and promised to send a conveyance for execution by the defendant and asked the defendant 'to arrange; to have the property released from the mortgage.'
10. On the 3rd of May the plaintiff filed petition before the High Court in the mortgage suit by the Maharajah. This petition has been quoted later on.
11. Then this suit was instituted on the 8th May. The defendant filed his affidavit in answer to the aforesaid petition on the 17th of May and eventually the plaintiff declined to deposit the decretal amount as directed by Mr. Justice Rankin by his order dated the 17th May 1920. The defendant filed his written statement on the 9th July 1920. The Howrah properties were sold on the 14th July 1920 in execution of the Maharajah's mortgage-decree for Rs. 8,61,000.
12. The decision of the case really depends upon the facts which appear from the documents filed in the case and the oral evidence has very little bearing on the matters.
13. Mr. Sircar who opened this appeal for the plaintiff put his case on this short and clear ground, namely, that the plaintiff was absolved from showing that he was ready and willing to perform his part of the contract, namely, the payment of the decree held by the Maharajah of Darbhanga, and thus to save the property from sale, because the defendant had repudiated the contract before the suit was brought. In support of this contention he relied upon the case of British and Beningtons, Ltd., v. N.W. Cochar Tea Co. (1923) A.C. 48 : 92 L.J. K.B. 62 : 128 L.T. 422 : 28 Com. Cas. 265. The proposition of law as broadly stated is undisputable, but then the proposition which remains to be established is, 'Was there such a repudiation in fact as would attract the operation of this rule.' Before I discuss the matter any further, I shall quote here a few material extracts from the judgments of this case. At page 63, Lord Atkinson said as follows: 'Lord Abinger, in Demedina v. Norman (1812) 9 M. & W. 820 at p. 827 : 2 Dowl. (N.S.) 239 : 11 L.J. Ex. 320 : 152 E.R. 347 : 60 R.R. 912, laid down that the words, 'readiness and willingness used in such a connection imply not only the disposition but the capacity to perform the contract' then says that 'repudiation is accepted and acted upon by the seller, as it evidently was in this case, the seller is relieved from the performance of all conditions precedent, including the condition of being ready and willing at the date of repudiation' At page 64 his Lordship goes on and says 'In common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it if it had not been renounced by the defendant.' At page 65 as Lords Mansfield says Jones v. Barkely (1781) 2 Doug. 684 at p. 694 : 99 E.R. 434. 'The party must show the was ready; but, if the other stops him on the ground of an intention not to perform his part, it is not necessary for the first to go farther and do a nugatory act'.
5. The passages which I have quoted are quite sufficient for the present enquiry. The plaintiff had not redeemed the mortgage which was a condition precedent to the sale and the plaintiff has not shown that he was stopped from doing so.
6. Mr. Sircar admitted, though not in clear terms, that his client had not performed his part of the verbal agreement, because there was clear repudiation by the defendant before the suit was brought. It is necessary, therefore, to examine the evidence to see whether this was established. Now with a view to understand this part of the case, it would be very convenient to refer to the petition which was put in by the plaintiff on the 3rd of May 1920 only 5 days before the suit was instituted on the 8th of May 1920. In para. 6 at page 23, the subsequent verbal arrangement is set out. In para. 10, at page 27, the plaintiff treated the agreement for sale between himself and the defendant as subsisting and on that basis he asked for permission to pay off the mortgage-decree and there was no allegation in that petition against the defendant which could be construed as a repudiation of the contract by him. The statement in para. 12 is practically the same as is the 8th paragraph of the plaint which I shall deal with later on. Now it is clear from this petition that the plaintiff was bound to carry out the terms set out in para. 6 of this petition and this petition was obviously intended as a step in furtherance of that object, and this petition, as I have already stated, does not indicate that he, the plaintiff, was absolved from performing his part of the contract by any repudiation of it by the defendant and, therefore,' he was not entitled to rely upon the rule of law quoted above.
7. Mr. Sircar very strongly relied upon the letter of the plaintiff's Attorney to the defendant, dated the 26th April, for establishing that the defendant had by omitting, to reply to this letter, repudiated the contract and, therefore, after waiting for a reasonable time for a reply he was entitled to sue to enforce this contract without waiting for the result of this application, because the plaintiff was not, bound to pay the mortgage-money due to the Maharajah, The learned Counsel further relied upon the affidavit which the defendant filed on the 17th May in reply to the plaintiff's petition mentioned above. The subsequent acts and conduct of the defendant may be useful in judging of the acts and conduct of the defendant before the suit was brought, but the repudiation by the defendant upon which the plaintiff relies must be established by the acts and conduct of the defendant before the suit was brought. I quoted the plaintiff's petition of the 3rd May only with a view to show that the contents of this petition clearly negative the case of sue repudiation as will justify the plaintiff to plea I that he was entitled to a conveyance on the 8th of May when the suit was brought The plaint does not mention any plea of repudiation of the contract as justification or the non-performance of any terms of he oral agreement, which is not even mentioned in it. Then again the plaintiff states hat he was always ready and willing to perform his part of the contract. No issue vas raised on the question of repudiation of the contract although it is a material point in the case.
8. What then is the evidence of the repudiation of the contract by the defendant. His denial of the contract in his affidavit or in the written statement cannot furnish a cause of action arose on the 27th March the date of the contract. This has no meaning. The plaint except stating what is to be found in para. 12 of the petition quoted above gives no definite facts nor does it state any breach of the contract by the defendant. In para. 8 of the plaint the plaintiff states, 'He (the defendant) is seeking to sell the said property at a higher price in breach of the said agreement and in derogation of the plaintiff's rights.'
9. It seems to me that the plaintiff rushed to Court in a hurry and without any definite cause of action. The vague rumour that the defendant was trying to secure a higher price for the Howrah properties cannot constitute a repudiation of the contract for sale dated the 27th March. This conduct of the defendant may be explained on various hypothetical grounds. He might have been trying to find out other purchasers in case the bargain with the plaintiff failed, or it may be that the defendant if he got a better offer might expect to buy off the plaintiff. This conduct of the defendant cannot, therefore, be treated as a breach of the contract with, the plaintiff.
10. Then what was the conduct of the plaintiff even though defendant gave no reply to the letter of the 26th April. Did the plaintiff treat that as a definite breach by the defendant? On the contrary on the 29th April the plaintiff conveyed his approval of the defendant's title to the property and according to the contract the time for completion of the contract after such approval was 30 days from the 29th April. In the petition to the High Court, the plaintiff gave no indication whatsoever as to the defendant having done anything which offered any obstacles in his way. It is quite clear from this petition that the plaintiff was trying to evade the 'terms of the verbal and subsequent agreement set out in the 6th paragraph of the petition. His endeavour seems to have been directed to obtain a conveyance of the Howrah properties without redeeming the entire mortgage as he was bound to do before he could demand a conveyance from the defendant of the Howrah properties in terms of the contracts admitted by him. The prayer portion is significant. In his letter of the 26th April, upon which reliance was placed by his learned Counsel, the plaintiff intimated to the defendant that the conveyance which he was ready and willing to accept, would require the Receiver to join as a party. This certainly did not contemplate a previous redemption of the entire mortgage-decree of the Maharajah. Mr. Bose in his reply relied upon certain passages from the evidence to show that the plaintiff was informed by Junglu as to the defendants' attempt to procure purchasers at higher value. This only explains and supports para. 12 of the petition but really does not establish such a repudiation which 'stopped' the plaintiff so as to make his further acts nugatory. In fact the plaintiff did not treat the defendants' conduct as a breach but on the contrary the plaintiff treated the contract as still art open one which he filed the petition of the 3rd May. Oh the evidence I have no doubt that both the parties were trying to take advantage over each other.
11. Dr. Bysak, who appeared for the respondents, supported the decree of the learned Judge although he very properly admitted that the judgment could not as a whole be supported. The finding of the learned Subordinate Judge that the contract was obtained by undue influence cannot be supported. There was no evidence of any undue influence or pressure upon the defendant who freely entered into the agreement for sale, though, it may be he did so with great reluctance. The learned Subordinate Judge was unnecessarily severe on the defendant on the ground that he acquired wealth in a short time.
12. We do not think, therefore, that the plaintiff has established any breach or repudiation of the contract by the defendant before the 8th of May and we also think that the plaintiff has failed to carry out the subsequent verbal agreement which was a condition precedent to the execution of the kobala. It appears that the plaintiff was unwilling to undertake the burden of discharging the entire sum due under the Maharajah's decree.
13. The claim for a decree for specific permance of contract is not a matter of right. The Court has to consider the whole of the surrounding circumstances and the position of the parties and then to consider whether in the exercise of its discretion, no doubt to be exercised on well-known principles, the Court should grant such relief or grant damages in lieu thereof. Here we are relieved from such consideration when we find that the plaintiff's claim falls on the grounds stated before.
14. The appeal fails and is dismissed with costs.
15. I agree.