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Petitioner: SREE PURNENDU KUMAR DAS-DEFENDANT VS Respondent: SREE HIRAN KUMAR DAS-PLAINTIFF
P L D 1970 Dacca 123
P L D 1970 Dacca 123
Before A. B. Mahmud Husain and Habibur Rahman, JJ
Sree PURNENDU KUMAR DAS‑Defendant Appellant
Versus
Sree HIRAN KUMAR DAS‑Plaintiff--- Respondent
Appeal from Original Decree No. 7 of 1960, decided on 7t April 1969.
(a) Contract Act (IX of 1872), S. 55‑Whether time is of the essence of the contract‑Requisite considerations to find.
Three requisites are to be considered in finding whether time is the essence of the contract (1) express stipulations between the parties, (2) nature of the property and (3) the surrounding circumstances.
Jamshed Khordarans Irani v. Burjorji Dhunjibhai I L R 4 Bom. 2b9 (P C) , Kali Das Ghosh v. Mugneeram Bangur & C A I R 1955 Cal. 298 ; Hajee Saru Meah Sowdagar and another A7st. Al‑Haj Jahanara Begam and others 8 D L R 616 and Rober v. Berry (1853) 3 De G M & G 284 ref.
(b) Contract Act (IX of 1872), S. 55 read with East Pakistan Transfer of Agricultural Land Act (XXXIII of 1951), Ss. 4 5‑Agreement of sale between A (vendor) and B (vendee) for sale of agricultural land in excess of 10 bighas and to execute kabala on a fixed date‑A's application for permission under Act XXXIII of 1951 to transfer land being rejected, B undertaking to take all necessary steps in that behalf but thereafter not pursuing case diligently and not obtaining it till the stipulated date‑Time, held, was of the essence of the contract and B must suffer for his laches.
The plaintiff and the defendant entered into an agreement and a specific clause in the terms of the agreement was incorporated whereby the plaintiff took upon himself to take all necessary steps for getting the certificate and in fact this plaintiff filed a Naraji Petition before the Collector and thereafter took steps for obtaining his permission. So it does not hold good to argue that the intending purchaser had no question to pursue the case for permission before the learned Collector. The plaintiff could easily pursue this matter before the learned Collec tor as it was found from the record that the Collector was fact on himself very much interested in the welfare of the parties and in his intervention an agreement was entered into by the parties:
Held, the laches on the part of the plaintiff to take steps for obtaining permission stand in the way of getting any benefit whereby he can evade time fixed for executing the kabala. The plaintiff himself took upon himself the responsibility to obtain the permission and when it is found that the plaintiff did not take any step until after the expiry of the stipulated date when he filed a Naraji Petition before the Collector where express stipulation was that kabala was to be executed on a particular date it is clear that the plaintiff was not diligent in the matter of getting the certificate and for such laches he has to suffer for which nobody else can be held responsible.
Paul Couvreur and another v. M. G. Shapira P L D 1947 P C 360 fol.
(c) Contract Act (IX of 1872), S. 23 ‑Undue influence---‑Criminal cases filed by A against B---B confronted with charge of breaking contract before Magistrate in open Court and suggestion of compromise offered agreeing to execute agreement to sell land and executing it during pendency of criminal proceedings‑Criminal cases subsequently dismissed for non‑prosecution‑ Contract, in circumstances held, hit by S. 23 and consideration of agreement unlawful.
There were two cases already pending and were fixed for hearing. So, the very fact that a case was initiated by the plaintiff under section 406, P. P. C. goes to show that the defendant was in a very difficult position when the Magistrate was dealing with the three cases and was suggesting for a compromise and as it appears that terms of agreement were settled on the same day and the case under section 406, P. P. C. remained pending till 5 days thereafter when the parties entered into the agreement and an order was passed in the proceeding in this term :‑"The complainant does not proceed. Dismissed under section 203, Cr. P. C."
Held, this is sufficient to hold that this contract is hit by section 23 of the Contract Act as the consideration or object of the agreement is unlawful.
Paul Couvreur and another v. M. G. Shapiro P L D 1947 P C 360 and Radha Ballav Basak v. Krishna Sundari Basak 5 D L R 114 ref.
Nurul Haque Bhuiyan for Appellant.
Nasiruddin Chowdhury for Respondent.
Dates of hearing : 28th, 31st March and 4th April 1969.
JUDGMENT
MAHMUD HUSAIN, J.---‑This appeal on behalf of the defendant is directed against the judgment and decree of the learned Subordinate Judge passed in a suit for specific performance of contract.
The plaintiff‑respondent filed a suit on 29th April 1958, on the basis of an agreement entered into between the parties on 30‑4‑55 corresponding to 16th Baisakh 1362 B. S. and it is stated that in pursuance of the said contract the plaintiff is entitled to get a sale deed in respect of the suit property. Admittedly the plaintiff and the defendant are the two brothers and the suit property exclusively belonged to the defendant. There are three Schedules given in the plaint. Schedule 3 is in respect of homestead on Plot No. 4 of Schedule 1 and Schedule 2 are the jote lands and Schedule 1 are the maliki lands. It was agreed that the defendant would sell the suit lands to the plaintiff for a consideration of Rs. 15,000 on the basis of the said agreement and accordingly the plaintiff paid Rs. 2,000 as earnest money which was duly received by the defendant and it was agreed that the defendant would execute the kabala on receipt of the balance amount of Rs. 13,000 from the plaintiff by 4swin next, that is, Aswin, 1362 B. S. It is stated by the plaintiff that the necessary permission from the Collector for the sale of the said land would be obtained by the defendant and that the defendant would not transfer or change the character of the said lands and huts before the execution of the said kabala and if the defendant transfer the suit land or change the character of the said lands the defendant would pay adequate compensation to the plaintiff. It is further stated by the plaintiff that the defendant filed a Registration Miscellaneous Case No. 27 of 1954‑55 before the Collector of Habiganj for necessary permission to sell the suit property in accordance with the terms and contract and that the plaintiff could not know as to whether the defendant got the permission. So, the plaintiff served a registered notice upon the defendant on the 5th Aswin, 1362 B. S. corresponding to 22‑9‑1955 asking the defendant to inform whether he was prepared to execute the document and that the defendant thereafter informed the plaintiff by registered post card dated 11‑10‑55 that even although he filed an application before the Collector for permission, he did not get such permission. It is stated by the plaintiff that the defendant did not inform him previously that he filed an application for permission to the Collector. It is further stated by the plaintiff that he came to know on enquiry from the defendant that the defendant would get the said permission himself and would let the plaintiff know about it after he got the permission and that the defendant also told the plaintiff at that time that the plaintiff would not have to do anything for getting the said permission and that if anything was necessary to be done by the plaintiff, the defendant would inform the plaintiff. The plaintiff on receipt of the said post‑card dated 11‑10‑55 made enquiry in the Office of the Collector and came to know that the defendant's application for permission was rejected by the Collector on 18‑7‑55. Thereafter the plaintiff prayed for review of the order passed by Collector and prayed for permitting the defendant to sell the suit land to the plaintiff and the Collector thereafter allowed the said miscellaneous case by his order dated 18‑1‑56 and permitted the defendant to transfer the suit lands. It is further stated by the plaintiff that in spite of permission obtained by the defendant to sell the land and in spite of plaintiff's request to the defendant to accept the balance amount of Rs. 13,000 and to execute the kabala, the defendant was not executing the kabala in favour of the plaintiff on receipt of the said amount of Rs. 13,000 and was not putting the suit lands and huts in possession of the plaintiff with bad motive and actuated by illegal gain. It is further stated by the plaintiff that he was prepared to do whatever was necessary for him to do in terms of the said agreement. Thereafter the plaintiff was obliged to file this suit, stating that the cause of action arose in the end of Aswin, 1362 B. S. corresponding to 18‑10‑55 being the last date for putting the plaintiff in possession of the suit lands, on execution of the kabala in terms of the agreement and from the date of Collector's order dated 18‑1‑1956.
The defendant filed a written objection and contended that the plaintiff having obtained the deed of agreement by undue influence and coercion and putting pressure of criminal case upon him, the said deed of agreement is void and as such the plaintiff is not entitled to get any kabala from the defendant and khas possession of the suit lands in pursuance of the contract and it is further contended that the plaintiff himself broke the said contract and as such he is not entitled to get the kabala and the amount of Rs. 2,000 paid in terms of the agreement is liable to be forfeited. It is further stated by the defendant that with a view to collect fund to start business this defendant removed the materials of his two huts by dismantling them and that he wanted to sell some lands and he accordingly applied for income‑tax clearance certificate including the plaintiff as one of the intending purchaser.
The plaintiff filed an application under section 144 of the Code of Criminal Procedure against the defendant before the Sub‑Divisional Officer, Habiganj on various false allegations that the defendant was going to sell khas lands more than 10 standard bighas without the previous permission of the Collector and that the defendant received earnest money from the plaintiff to sell the defendant's but and lands and if the materials of the dismantled huts were sold, there was apprehen sion of breach of peace and that notice was served upon this defendant to show cause and appear before the Sub‑Divisional officer with the Income‑tax Clearance Certificate on 25‑4‑55. The plaintiff again filed a criminal case on that very date, that is, on 25‑4‑55 under section 406 of the Pakistan Penal Code and put pressure upon the defendant and obtained the said agree ment from the defendant by undue influence and coercion. That the plaintiff having obtained the said deed of agreement from the defendant on 30‑4‑55 got the said criminal case (filed under section 406 of the Pakistan Penal Code) discharged under section 203 of the Code of Criminal Procedure.
It is asserted by the defendant that the plaintiff was in good terms with the Sub‑Divisional Officer who expressed his goodwill to settle the quarrel with his brother and assured the plaintiff that the defendant would not take much trouble in getting the permission for sale as the plaintiff himself would take all necessary steps for getting the necessary permission and that the defendant was only to make proper application for such permission and the defendant filed application by the plaintiff did not take step and kept silent and played foul with the defendant by not taking proper step in getting the said permission, and then this defendant was put to various difficulties. It is stated that the defendant was on the verge of insolvency and found himself helpless and then he informed the plaintiff by a letter dated 7‑11‑55 that the defendant was prepared to execute the kabala on 18‑10‑55 in the Mukhtears Library attached to the Habiganj Criminal Court on receipt of the balance amount of Rs. 13,000. After receipt of the said letter of the defendant, the plaintiff having failed to pay the balance amount of Rs. 13,000 on false ground the defendant informed the plaintiff by another letter dated 11‑10‑55 that he was prepared to execute the kabala on receipt of the balance amount. Even after receipt of the said letter, the plaintiff took no step for permission and failed to come to Habiganj on 18‑10‑55 with the balance money and failed to express his desire to get the kabala. Then the defendant brought this matter to the notice of Mr. M. M. Haque, Senior Magistrate and a notice was issued upon the plaintiff, but the plaintiff did nothing in this respect. It is further stated by the defendant that on 18‑1‑56 the Collector granted permission for sale and in spite of that the plaintiff did not pay the balance money and get the kabala executed by the defendant and at that point of time the defen dant was compelled to sell some land. It is asserted by the defendant that the plaintiff had always the desire to grab the entire property of the defendant without consideration by putting pressure of criminal cases by getting the deed of agreement by undue influence and coercion and putting the defendant on various difficulties. It is stated by the defendant that the plaintiff brought this suit in order to harass the defendant and that in terms of the deed of agreement the amount of Rs. 2,000 paid by the plaintiff by way of earnest money is liable to be forfeited and the plaintiff is liable to pay him compensation.
The learned Subordinate Judge after hearing the parties decreed the suit. As against that the defendant filed this Appeal and Mr. Nurul Haque Bhuiyan, the learned Advocate for the appellant contended that the learned Subordinate Judge erred in law in not considering the terms of agreement Exh. 1 by which the plaintiff was to take steps to get the permission of the Collector and that the plaintiff having failed to obtain the permission in due time, the present suit is liable to be dismissed. It is further contended that the learned Subordinate Judge erred in law in holding that the defendant failed to prove coercion and undue influence and the learned Subordinate Judge erred in law in not holding that the time was the essence of the contract and lastly contended that the learned Subordinate Judge ought to have held that since the agreement is valid in part, that is, to the extent of 10 standard bighas only under the provisions of East Pakistan Transfer of Agricultural Land Act, 1951, the agreement as a whole is not enforceable in law.
The plaintiff alone examined in support of his case and defendant examined himself and two other witnesses in support of his case.
The plaintiff in his deposition for the first time introduced the story that there was a previous talk with the defendant for transfer of land in the year 1361 B. S. and it was settled in Poush, 1361 B. S. that defendant would sell some land and the plaintiff would purchase the same and the plaintiff admitted that he filed a criminal case under section 144 of the Code of Criminal Procedure and a case under section 406 of the Pakistan Penal Code against the defendant as the defendant dismantled two huts out of the huts contracted to sell and that thereafter both the cases were compromised in presence of the party lawyers and it was finalised on 30‑4‑55. It is stated by the plaintiff that on 25‑4‑55 it was settled that he would purchase the suit properties, except two huts, sold by the defendant for Rs. 15,000 and that on 30‑4‑55 the baina patra was executed by the defendant and that plaintiff paid him Rs. 2,000 as earnest money. In cross‑examination he had to admit that the story of contract in Poush, 1361 was not disclosed to his lawyer and we find from the plaint itself that there is no such reference of such first contract of 1361 B. S. in the plaint itself. Clause 2 of the deed of agreement Exh. 1 runs thus :
"2. The 2nd party will make a proper application for necessary and legal permission for the execution of valid kabala and for registration of the same and the 1st party will take all necessary steps for getting the same."
In 1st clause of deed of agreement it has been specifically mentioned that if the plaintiff pays the balance of Rs. 13,000 by the month of Aswin, 1362 B. S. the defendant would execute a valid kabala in respect of the suit properties and in case the plaintiff does not pay the said money within the prescribed time, defendant would not be bound to execute the kabala and the plaintiff would not be entitled to claim Rs. 2,000 paid as earnest money and would not be entitled to raise objection if the defendant sell the suit property. From the above term it will appear that the intention of the parties were to have the kabala executed by the month of Aswin, 1362 B. S. Defendant also admitted the execution of the deed of agreement and was taking the stand on clause 2 of the said agreement asserting that the responsibility for obtaining the permission for trans ferring the suit property lies with the plaintiff and the defendant having filed application for such permission to the Collector and the plaintiff having failed to take necessary step to obtain requisite permission in time, the plaintiff cannot now bring this suit with the permission obtained after the due date of the kabala, that is, 31st Aswin, 1362 B. S. corresponding to 18‑10‑55.
Mr. Nasiruddin Chowdhury, the learned Advocate appearing for the respondent relying on the case of Jamshed Khondaram Irani v. Burjorji Dhunjibhai (I L R 40 Bom. 289) contended that in the facts and circumstances of the case it cannot be said that the time was the essence of the contract and he further relied on the case of Kali Das Ghosh v. Mugneeram Bangur & Co. (A I R 1955 Cal. 29) and on the case of Hojee Saru Meah Sowdagar and another v. Mst Al‑Haj Jahanara Begum and others (8 D L R 616). It may be noted that the two cases I L R 40 Bom. 289 and A I R 1955 Cal. 298 were considered in the case reported in 8 D L R 616. The guiding principle for determining as to whether time is the essence of the contract has been quoted in the case reported in I L R 40 Bom. 289 and that has been considered in subsequent cases. The relevant passage in I L R 40 Bom. 289 runs thus
"The construction is, and must be, in equity the same as in a Court of law. A Court of equity will indeed relieve against, and enforce, specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for completion or for the steps toward completion, if it can do justice between the parties, and if (as Lord Justice Turner said in Roberts v. Berry (1853) 3 De G M & G 284), there is nothing in the `express stipulations between the parties, the nature of the property, or the surrounding circumstances', which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract. Of the three grounds . . . . . mentioned by Lord Justice Turner `express stipulations' requires no comment The `nature of the property' is illustrated by the case of revisions, mines, or trades. The `surrounding circumstances' must depend on the facts of each particular case."
So, we find from the above that three requisites are to be considered in finding whether time is the essence of the contract (1) express stipulations between the parties, (2) nature of the property and (3) the surrounding circumstances. In the present case express stipulation was that the kabala was to be executed on 18‑10‑55. The learned Advocate for the respondent contended, that the mere fact that time is specified for the performance of a contract is not itself sufficient to prove that time was the essence of the contract and in support of his contention he firstly referred to a passage of the written statement which runs thus.
"Thereafter on 18‑1‑56 the Collector granted permission for sale and in spite of that the plaintiff did not pay the balance money and get the kabala executed by the defendant. At this the defendant was compelled to sell some land,"
and then he relied on section 5 of the East Pakistan Transfer of Agricultural Land Act, 1951 and contended that permission to transfer of land is the pre‑requisite to get a kabala executed and since such permission is depended on the action under the provisions of the Act to which the plaintiff had no control due consideration should be given to the provisions of the said Act in order to pin down the present plaintiff on the point of tine being the essence of contract. In order to examine this point we are required to examine surrounding circumstances as required on the principles enunciated by their Lordships of the Privy Council. In the present case the relationship between the plaintiff and the defendant have been found to be very bitter. It appears from the deposition of defendant himself that he applied for transfer of land previous to the present agreement including the name of the present plaintiff as an intending purchaser and it is the case of the plaintiff that the defendant withheld this certificate and was going to transfer some lands to some other persons, as a result there was trouble between the parties and the plaintiff on the basis of such agreement filed a criminal case under section 144 of the Code of Criminal Procedure and thereafter he filed another case under section 406 of the Pakistan Penal Code. It appears from Exh. "C" that the plaintiff filed an application before the Sub‑Divisional Officer alleging that the defendant was going to dispose of his khamar land exceeding 10 standard bighas without the permission of the Collector and it was also stated that he obtained Income‑tax Clearance Certificate for this purpose and it appears from Exh. C(1) that the defendant was asked to show cause why an injunction under section 144, Cr. P. C. should not be issued against him. Accordingly the S. D. O. directed the defendant to appear before him with the Income‑tax Clearance Certificate to show cause, if any, by 25‑4‑55. And it further appears from Exh. A, the certified copy of petition of complaint filed under section 406 of the Pakistan Penal Code by plaintiff against the defendant that the defendant was misappropriating the sale proceeds.
It appears from the deposition of defendant that he appeared in Court on 25‑4‑55 in pursuance of Exh. C(l) to show cause in a proceeding under section 144 of the Code of Criminal, Procedure. And it is stated by the defendant that Mr. M. M. Haque sent for him and he was told that a case under section 406 of the Pakistan Penal Code was filed on that date and he further stated that several questions were put to him in Court as to ‑why he broke the contract with the plaintiff. That about 12 hours thereafter a proposal was made to him for selling the huts and the homestead and thereafter he agreed to sell the land but he told that he would not take trouble for getting the permission and at that time it was proposed from the side of the plaintiff that everything for getting permission would be done by the plaintiff himself. There is no cross -examination of the plaintiff on this assertion and it seems to us that the plaintiff could not cross‑examine on this point because of the fact that under clause 2 of the agreement Exh. 1 it was the plaintiff to take all steps for getting the permission. This defendant asserted that he filed the application for permission giving details of the property.
It appears from Exh. 5(a) certified copy of the order sheet in Registration Miscellaneous Case No. 27 of 1954‑55 in the Court of Mr. M. M. Haq, Collector of Habiganj that an application was filed by the defendant and it further appears that copy of this petition was also sent by the Collector to R. O., Habigsnj for enquiry and report as to the bona fide of the transfer and another copy was sent to A. I. T. O., Sylhet for a clearance certificate. It appears that on 18‑7‑55 the following order was passed :‑
"Seen R. O's. report dated 13‑7‑55. It is not necessary to await for report from A. I. T. O. Prayer rejected."
Now in terms of agreement when the plaintiff took upon himself for taking all necessary steps for getting the permission; it does not lie in his mouth to say that the duty for obtaining such permission was on the defendant invoking section 4 of the East Pakistan Transfer of Agricultural Land Act, 1951.
It is no doubt true that under the provisions of the said Act the transferor is to file an application before the Collector; the Collector having been defined in section 2(b) of the Act that the Collector or Deputy Commissioner of a District and includes a Sub‑Divisional Officer and such other officers not below the rank of a Deputy Commissioner as may be appointed to discharge all or any of the functions of the Collector under this Act. So the permission under this Act as…
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