JUDGMENT B.K. Sharma, J.
1. Heard counsel for the parties.
2. This is an appeal against the judgment and decree dated 15-4-1983 passed by Sri C.P. Singh, IVth Additional District Judge, Agra in Original Suit No. 439of 1975, Kishan Chand v. Bishambhar Nath Agrawal, whereby he had decreed the suit for specific performance of contract and directed the defendant No. 1-appellant Bishambhar Nath Agrawal to execute sale-deed within a period of 3 months on getting the amount of sale consideration and rent up to 31-10-1975. He was also directed to obtain requisite permission from the District Magistrate, if necessary. It was further directed that in case Bishambhar Nath Agrawal would not comply with the decree within the period aforesaid the plaintiffs-respondents would be free to get sale-deed executed through court at the cost of Bishambhar Nath Agrawal. It was declared by the decree that after 31-10-1975, the plaintiffs-respondents 1-4 and defendants Nos. 2 to 6 (present respondents Nos. 5 to 9) were not liable to pay rent or interest to Bishambhar Nath Agrawal, defendant No. 1-appellant.
3. The present suit was brought for specific performance of the agreement to reconvey house property No. 4/157 situated in Agra and for declaration that since after 31-10-75 the plaintiffs and defendants Nos. 2 to 6 were not liable to pay rent or interest to the defendant No. 1 with a prayer for adjustment of amounts, if any recovered from them or through the tenants against the amount payable to defendant No. 1 in the decree of specific performance. It was alleged that the major portion of the house property was occupied by plaintiffs-respondents Nos. 1 to 4 (the contesting respondents) while a minor portion was let out to tenants, that the plaintiffs Nos. 1 to 3 being in need of money approached the defendant No. 1 -appellant for advance of loan who agreed to advance loan of Rs. 20,000/- at the interest of Rs. 1 1/2% per month but obtained one deed having ostensible character of a sale-deed and also a rent note on 25-4-1968 for securing interest (the deeds were signed by plaintiff No. 4 also) but it was agreed that these two deeds will be used only as security for the purpose of loan and the interest accruing thereon, that the said plaintiffs continued to live in the house as owners, that ultimately defendant No. 1-appellant Bishambhar Nath Agrawal started asserting his ownership over the property and so the contesting respondents filed Original Suit No. 293 of 1973 in the Court of Civil Judge, Agra. The suit, however, was compromised on 12-11-1973 on the terms suggested by Bishambhar Nath Agrawal appellant under which the contesting respondents were to pay Rs. 1,02,120/- and Bishambhar Nath Agrawal was to execute reconveyance deed within a period of 2 years, and interest was to be paid in the form of rent. It was further alleged that the plaintiffs-contesting respondents could not pay the interest amount and could pay only a sum of Rs. 9,180/-but they made arrangements for the payment of the entire sale consideration and the entire balance of interest and requested Bishambhar Nath Agrawal defendant No. 1-appellant (hereinafter to be referred to as 'the appellant') to execute the reconveyance deed in their favour and served with notice dated 23-10-1975, that the appellant took no steps to obtain permission to execute the sale-deed under the provisions of the Temporary Ceiling Act,' despite service of notice dated 23-10-1975, that the appellant did not send any reply, that thereafter, the contesting respondents also sent a telegram dated 29-10-1975 requesting the appellant to come with permission to sale and execute the sale-deed but he did not send any reply to this notice also, that ultimately plaintiff-respondent No. 3 Mahesh Chand along with others approached the appellant to execute the sale-deed after obtaining permission but the appellant avoided to have any contact with them and so Mahesh Chand sent a telegram to the appellant from Gwalior but to that also no reply has been sent, that on 31-10-1975, the contesting respondents reached the office of the Sub-Registrar. Agra with necessary stamps and financiers Permanand Puri and Vishnu Ram Nagar and remained there till evening but the appellant did not turn up, that they thereupon, sent another telegram to the appellant dated 31-10-1975 at 5.20 p.m. but to that telegram also no reply has been sent by the appellant, that the contesting respondents had always been ready and willing to perform their part of the contract and even now they are ready and willing to perform the contract according to its true construction, that it was obligatory on the part of the appellant to have obtained permission for a sale but he did not do so and has been avoiding to perform his part of the contract with some ulterior motive, hence the suit.
4. The appellant contested the present suit. He admitted that the contesting respondents were in need of money but claimed that no loan was ever advanced to them as alleged. He claimed that the property in the suit had been sold to him for a consideration of Rs. 20,000/- but the contesting respondents were allowed to remain in possession of the disputed property on a rent of Rs. 300/- per month. He denied that the sale-deed and rent note were executed as securities for the alleged loan. He further claimed that the contesting respondents paid rent to him till 25-10-1969 and failed to pay any further rent and so he had to serve with the notice of demand and ejectment and as a counter blast to the said notice, the said Suit No. 293 of 1973 was filed by the contesting respondents for declaration, that they were the owners of the property and not his tenants, that when his notice of demand and ejectment matured, he filed Suit No. 30 of 1973 against the contesting respondents for reconvey of rent, ejectment and mesne profits. He admitted that Suit No. 293 of 1973 was got decided in terms of the compromise. He claimed that similar compromise had been filed in Suit No. 730 of 1973 also and that consequently both the suits were decided in terms of the compromise. He claimed that under the terms of the aforesaid compromise the plaintiffs had to pay a sum of Rs. 1,02,120/- within a period of two years starting from 1-11-1973 and latest up to 31st October, 1975 to the defendant i.e. to him, that the plaintiffs could pay the said amount of Rs. 1,02,120/- to him at one time in one instalment, or in several instalments within the stipulated period of two years, but no instalment could be less than the amount of Rs. 5000/- and such payment was to be made by the plaintiffs, to him through a crossed account-payee draft, in his favour on any bank at Gwalior, that besides the payment of the aforesaid amount of Rs. 1,02,120/- within the stipulated period, as aforesaid the plaintiffs had also to pay rent and mesne profits at the rate of Rs. 1530/- per month, continuously with effect from 1-11-1973, and that on payment of whole amount of Rs. 1,02,120/- plus up to date rent, the plaintiffs could avail the concession and indulgence from him and he in that case alone could execute a reconveyance deed in favour of the plaintiffs at their cost. It was also claimed by him that it was provided under the aforesaid compromise that in case the plaintiffs failed to pay the complete amount of Rupees 1,02,120/- plus the rent within the stipulated period of two years according to the aforesaid terms, they will cease to have any right to get the said reconveyance deed executed in their favour from him and they have also to vacate the premises and that he could get them ejected from the premises in execution of the decree passed in Suit No. 30 of 1973 of the Court of II Addl. District Judge, Agra. It was also claimed by him that the plaintiffs committed breach of the terms of the said compromise and did not pay the amount of Rs. 1,02,120/- within the aforesaid period of 2 years, that the plaintiffs also failed to pay the amount of rent or mesne profits regularly and did not pay any amount for the period after 30-4-1974, with the result that the decree passed in Suit No. 30 of 1973 became executable, that as aforesaid the plaintiffs cannot avail of the concession and indulgence, which was allowed to them under the terms of the aforesaid compromise decree, as they have failed to pay his amount and thereby committed the breach of the terms of the agreement. The appellant also claimed that the contesting respondents neither offered to pay the amount nor were they ever ready and willing to perform their part of the contract within the stipulated time, that they had no money to pay nor had any capacity to pay the amount to him and for that reason they committed breach of the terms of compromise. The allegations of the contesting respondents that they had arrangement to pay sale consideration and rent etc. was denied by the appellants.
5. He (the appellant) further claimed that time was essence of the contract and since the contesting respondents failed to perform the terms of the compromise, they lost their rights to seek specific performance. It was also claimed in the alternative that mere offer of the payment of the amount was not enough, that the contesting respondents were under the obligation to actually pay the amounts to him within the stipulated time in the manner provided under the compromise at Gwalior before seeking execution of reconveyance deed. It was further claimed by the appellant, that since the amount had not been paid to him under the terms of the compromise, he was under no obligation to seek any permission for the transfer of the property under the Temporary Ceiling Act. He claimed that it was the contesting respondents who committed the breach of the contract. He also claimed that the suit was barred by time. He also claimed that the suit of the contesting respondents was barred by Section 47, C.P.C.
6. The trial Court held that the suit was within the time, that the suit was also not barred by Section 47, C.P.C., that the contesting respondents were always ready and willing to perform their part of the contract, that it was the appellant who had actually failed to perform his part of the contract. He held that the contesting respondents were not liable for rent from 31-10-1975 onwards. He held that the contesting respondents are entitled to specific performance and consequently granted the decree for the same. Hence, this appeal had been prepared by the appellant.
7. The appeal came up before the Division Bench of this Court. The Bench held that the compromise has merged into the decree and so it could not be enforced by way of a separate suit and that only the decree could be put into execution if the appellant had failed to execute it within the time mentioned in the compromise. On this view, the Division Bench held that the suit was not maintainable and that the findings of the trial Court that the compromise was a separate contract was erroneous and set it aside. The Division Bench further held the manner of payment as enjoined in Clause 3(B) of the compromise was not at all complied with and that consequently any amount of readiness in any other manner on the part of the contesting respondents by making arrangement for the money, giving notice to the appellant, sending telegram and remaining present in the Sub-Registrar's office will not amount to a due performance of the contract part. The Division Bench discarded the evidence of arrangement with financiers for providing a sum of Rupees 90,000/- at the time of execution and also held that the agreement in question between the contesting respondents and the financiers was of no help to them. The Division Bench further held that no permission for sale from the District Magistrate was required in the matter (under the Urban Property Ceiling (Temporary Restrictions on Transfer) Act, No. 36 of 1972 or Urban Land Ceiling and Regulation Act, 1976 as the transfer was being made in a matter which had merged into a decree. The Division Bench consequently, found the suit as not maintainable and also held that the contesting respondents had failed to prove their case and consequently allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit. Costs, however, were made easy throughout.
8. Being aggrieved by the aforesaid judgment of the Division Bench dated 23-10-1989, the contesting respondents preferred Civil Appeal No. 4 of 1993 before the Apex Court. The Apex Court held that stipulation for execution of the reconveyance was obviously outside the scope of that suit for declaration of a title and noting that the compromise was made on 1-11-73 prior to the amendment of Order 23, Rule 3, C.P.C. by the 1976 Amendment Act which came into force from 1st February, 1977 observed that in such a situation a separate suit to enforce that part of the agreement which was outside the scope of the earlier suit was clearly maintainable since that part of the compromise was not executable as a decree passed in the earlier suit for declaration. Regarding findings of the Division Bench against Kishan Chand and others that they were not ready and willing to perform their part of the contract the Apex Court observed that the findings on the question recorded after holding that the suit was not maintainable does not justify upholding the High Court's judgment for that reason in the present case, that the High Court was dealing with the matter in first appeal and the appropriate course to adopt would be to decide the first appeal on this question treating the suit as maintainable and that it is, therefore, appropriate that the matter be sent back to the High Court for a fresh decision. The Apex Court, therefore, allowed the said appeal, set aside the impugned judgment of the High Court and directed that the High Court shall hear and decide the first appeal on merits treating the suit to be maintainable without being influenced in any manner by its earlier findings on the question of readiness and willingness of the plaintiffs to perform their part of the agreement contained in the judgment which is set aside.
9. During the pendency of this proceeding pro forma respondent No. 4/2, Laxman N. Garg has died and the fact of his death has been taken on record,
10. In the plaint of the suit a plea has been taken that Bishambhar Nath Agrawal appellant ought to have obtained permission for execution of the sale-deed in favour of the plaintiffs-contesting respondents Nos. 1 to 4 in view of the provisions of the Temporary Ceiling Act in force in U. P. Admittedly, no permission was ever sought by the appellant Sri Bishambhar Nath Agrawal during the pendency of the agreement to reconvey the disputed property i.e. between the period 1-11-73 to 31-10-75. So far as the present position is concerned the Urban Land (Ceiling & Regulation) Act, 1976 (Central Act No. 33 of 1976) is in force at present and Section 27 of the said Act, which made prohibition on transfer of urban property and provided for permission by the competent authority for transfer by way of sale-deed, was declared ultra vires by the Apex Court vide its judgment in the case of Maharao Sahab (sic) Bheem Singh Ji v. Union of India, AIR 1981 SC 234. Furthermore, Act No. 33/76 came into force with effect from 17-2-1976 and prohibition on transfer under Section 27 was limited only for a period of ten years since the commencement or from the date on which the building is constructed whichever is later, and the urban property in dispute existed even in the year 1975 when Suit No. 441 of 75 giving rise to this appeal was filed. So, in any case, Section 27 did not apply and no permission was needed at present and in view of the Apex Court's judgment declaring Section 27 of the said Act ultra vires even on the date of trial Court's judgment i.e. April 15, 1986.
11. The argument of the learned Counsel for the contesting respondents is that the plea that Sri Bishambhar Nath Agrawal had not sought permission from the District Magistrate to sell the disputed property was raised with a view to show that Bishambhar Nath Agrawal appellant was not willing to perform his part of the agreement to reconvey the disputed property. The present Ceiling Act is a central legislation but before that Uttar Pradesh Ceiling on Property (Temporary Restrictions on Transfer) Ordinance, 1972 (U. P. Ordinance No. 15 of 1972) was promulgated on 11-7-1972 prohibiting transfer of urban property for a period of three months. Section 3(4) of the said Ordinance enabled the State Government to exempt any urban property from the provisions of the Ordinance by special or general order, in case it was to be used for educational, scientific, industrial or commercial purposes or for similar other purposes. This Ordinance was replaced by Uttar Pradesh Ceiling on Property (Temporary Restrictions on Transfer) Act, 1972 (U. P. Act No. 36 of 1972) containing similar provisions for a period of three months from 12-7-1972. Then by Uttar Pradesh Ceiling on Property (Temporary. Restrictions on Transfer) (Amendment) Ordinance, 1972 (U. P. Ordinance No. 16 of 1972), the amendment of Section 3 of U. P. Act No. 36 of 1972 was made to make the Act applicable during the period July 12, 1972 to December 31, 1972. Then Uttar Pradesh Ceiling on Property (Temporary Restrictions on Transfer) (Amendment) Act, 1972 (U. P. Act No. 45 of 1972) was passed by the U. P. Legislature, by which the period of application of Act No. 36 of 1972 was extended till 31st January, 1973. This amending introduced a new provision as subsection (5) of Section 3 in the original U. P. Act No. 36 of 1972. This provision enabled the Commissioner of the Division to permit the property holder to transfer it on being satisfied that the present market value of the urban property held by any person along with members of the family on April 1, 1969 as well as on the date of commencement of this Act (U. P. Act No. 36 of 1972), in other words July 12, 1972 does not exceed Rs. 2 lacs. Then U. P. Act No. 36 of 1972 was further amended by U. P. Act No. 7 of 1973, which extended the term of operation of the Act uptil 30th April, 1973. Thereafter, U. P. Act No. 36 of 1972 was further amended by the Uttar Pradesh Ceiling on Property (Temporary Restrictions on Transfer) (find Amendment) Act, 1973 (U. P. Act No. 14 of 1973) which substituted the words 'District Officer/Collector' for the words 'Commissioner of the Division' in Section 3(5) of the said Act (U. P. Act No. 36 of 1972). Thus the authority to grant permission was vested in 'District Officer/Collector' instead of 'Commissioner of the Division'. The U. P. Act No. 36 of 1972 was further amended by the Uttar Pradesh Ceiling on Property (Temporary Restrictions on Transfer) (IIIrd Amendment) Act, 1973 (President's Act No. 18 of 1973) by which the period of operation of U. P. Act No. 36 of 1972 was further extended uptil September 30, 1974, and the words '3 lacs' was substituted for the words '2 lacs' in Sub-section (5) of Section 3 of U. P. Act No. 36 of 1972. Thereafter, U. P. Act No. 36 of 1972 was further amended by Uttar Pradesh Ceiling on Property (Temporary Restrictions on Transfer) (Amendment) Act, 1975 (U. P. Act No. 15 of 1975) which came into force on 31st March, 1975. It further extended the period of operation of U. P. Act No. 36 of 1972 uptil 31st December, 1975. Section 3(2) of U. P. Act No. 36 of 1972 provided that every transfer made in contravention of Sub-section (1) of Section 3 (which prohibited transfer of urban property, save as provided in Sub-sections (3), (4) or (5) of Section 3) shall be void.
12. In view of the said provisions it is obvious that no sale-deed could be legally executed by Bishambhar Nath Agrawal appellant in favour of the plaintiffs-contesting respondents without having obtained the permission from the District Officer/Collector under Sub-section (5) of Section 3 of U.P. Act No. 36 of 1972 which was on the statute book all along during the relevant period of two years i.e. between 1-11-73 to 31-10-75. It may be noted that in the plaint of the suit it was said in para 3 that the value of the property in suit in the year 1968 was not less than Rs. 2 lacs. In para 3 of the written statement denial of this plea was made but the plea was never raised in the written statement that permission was not sought as the value of the property exceeded the permissible limit under Sub-section (5) of Section 3 of U.P. Act No. 36 of 1972. The only plea made in the written statement was that since the amount was not paid to him under the terms of the compromise he was not under obligation to seek any permission for the transfer of the property under the Temporary Ceiling Act.
13. It is true that there was no such term in the compromise agreement aforesaid that Sri Bishambhar Nath Agrawal defendants-appellant would seek permission under the Temporary Ceiling Act which was applicable even on the date of the compromise agreement aforesaid. In the case Moti Lal v. Nanhe Lal, AIR 1930 PC 287, which also was case of an agreement to reconvey the property, it was held that when a party agreed to transfer the cultivating rights in Sir land there was an implied covenant on his part to do all things necessary to effect such transfer which would include an application to Revenue Officer to sanction the transfer. In that case permission of the Revenue Officer was required under the Central Provincial Tenancy Act for the transfer of Sir land.
14. Then there was an authority of the Apex Court, Natthu Lal v. Phool Chand, AIR 1970 SC 546, where it was held that whereby a statute property is not transferable without the permission -of the authority, an agreement to transfer the property must be deemed subject to the implied condition that the transfer or will obtain the sanction of the authority concerned.
15. Then there was also an authority Syed Jalal v. Targopal Ram Reddy, AIR 1970 AP 19, in which it was held :
"Under Section 47 there can be no bar to the maintainability of a suit for specific performance of an agreement to direct the defendant (seller) to apply for permission under Section 47 and after he obtains it to execute a sale-deed. This result would follow whether or not there was a specific term in the agreement that permission would be obtained under Section 47 and that thereafter a sale-deed will be executed......."
16. Though it was not pleaded in the written statement of the defendant No. 1-appellant in the suit that such a permission was not needed because the reconveyance under the compromise agreement would be an involuntary transfer under a decree of the Court, his learned Counsel has raised the contention before us and placed reliance on Section 2, Clause (d) of the Transfer of Property Act that nothing therein contained shall be deemed to affect any transfer by operation of law in execution of, a decree or order of a Court of competent jurisdiction, save as provided by Section 57 and Chapter IV, of the Act, and also on the authority Pratap Narain Agrawal v. Ram Narain, 1981 All LJ 591. That was a case of consent decree in a suit of dissolution of the partnership and rendition of account and the Court had held that decree did not embrace matters not relating to the suit and on its basis held a deed of relinquishment executed in persuance of a term in the compromise decree to be not a voluntary transfer holding that transfers arising out of court decrees or court orders are not in the nature of voluntary transfers and that consequently Sections 26 and 27 of Urban Land Ceiling and Regulation Act were not attracted.
17. In this authority reliance was placed on the authority (Samuel Tyagraja v. Sita Ram Achar, AIR 1977 Kant 158). Samuel's case related to a sale taken in an auction sale made in execution of a decree where the title is transferred without a registered sale-deed and the Court merely issues a sale certificate and about such execution sale it was said that Section 27 of the Urban Land Ceiling and Regulation Act had no application.
18. In the judgment of the Division Bench (Hon'ble N.N. Mithal and Hon. G. D. Dubey, JJ.) earlier delivered in the present appeal on 23-10-89 the finding was given that the compromise agreement in this case had merged in the decree, that the only thing existing was the decree containing the compromise agreement and that consequently the compromise agreement had ceased to exist and it could not be enforced by way of a separate suit and that the only course left to the plaintiff was to execute the decree and that the finding of the lower Court that the compromise was a separate contract was erroneous. But, as noted above, all these findings have been set aside by the Apex Court in Civil Appeal No. 4 of 93. Consequently, the agreement to reconvey in the present case having been held by the Apex Court as beyond the scope of suit No. 293/73 consequently to its extent there was no decree in existence at any time during the period of two years in which the reconveyance deed was to be executed as per the terms of the compromise agreement aforesaid and so such a reconveyance cannot be held to be an involuntary sale in execution of the decree in Suit No. 293/73 for which no permission may be needed under U. P. Act No. 36 of 1972. Furthermore, it is difficult to hold that there will be no need for the defendants to obtain permission to sell required under any law, general or special, before executing the transfer deed in pursuance of the voluntary agreement between the parties on the assumed ground that if a decree is passed by the Court in the suit for specific performance of the agreement, the sale deed executed in pursuance of the decree or the sale deed executed by the Court on behalf of the defendants-JDs would be involuntary sales.
19. The decree for specific performance only embodies and enforces the earlier voluntary agreement between the parties and so the transfers in pursuance of or in execution of the decree cannot be at par with the auction sales of properties in execution of a decree contemplated in Samuel's case (AIR 1977 Kant 158) (supra) which are involuntary transfers.
20. Here it will be useful to refer to an authority of the Apex Court in the case of Mrs. Chandnee Widya Vati Madden v. Dr. C.L. Katial (AIR 1964 SC 978). That was a case of a suit for specific performance of an agreement to sell (and in the alternative for damages) which provided that the vendor shall obtain the permission of the Chief Commissioner to the transaction of sale. The main ground of attack of the defendant of the suit was that the contract is not enforceable being of a contingent nature and the contingency (permission of the Chief Commissioner) not having been fulfilled. The Apex Court repelled this contention and observed :--
".....In our opinion, there is no substance in this contention. So far as the parties to the contract are concerned, they had agreed to bind themselves by the terms of the document executed between them. Under that document it was for the defendant-vendor to make the necessary application for the permission to the Chief Commissioner. She had as a matter of fact made such ah application but for reasons of her own decided to withdraw the same. On the findings that the plaintiffs have always been ready and willing to perform their part of the contract and that it was the defendant who wilfully refused to perform her part of the contract, and that time was not of the essence of the contract, the Court has got to enforce the terms of the contract and to enjoin upon the defendant-appellant to make the necessary application to the Chief Commissioner. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction."
21. The position of law will remain the same whether the obligation to obtain permission it a term stipulated in the contract or is deemed an implied term of the contract in view of any law general or special. Where any law requires a permission to be taken the vendor will have to apply for it and the authority concerned will have discretion to grant or refuse the sanction sought and in case sanction is refused damages will be the only relief which the Court could award. So it is held that the defendant No. 1 appellant was under obligation to seek permission to sell from the Collector, Agra.
22. Now in the context of the facts of this case the question arises as to whether the appellant was under obligation to obtain permission first even before payment of the consideration money to him or whether the duty to comply with this obligation would impinge on him only if and after the plaintiffs-contesting respondents had performed their part of the agreement as contemplated under the terms of the Sub-clauses (a), (b) and (c) of Clause 3 of the agreement about the payment of Rs. 1,02,120/- and up-to-date rent amount due. The argument that there was no need for the appellant to bother to seek permission to sell unless and until the entire consideration money as per the compromise agreement was paid to him may at first sight appear attractive but on a closer examination, it cannot be sustained.
23. Section 52 of the Indian Contract Act runs as follows :--
"52. Order of performance of reciprocal promises:--Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires."
24. Since the term of seeking permission was deemed to be an implied term, one could not expect to find its mention in the order of performance of terms given in the compromise agreement.
25. Now the question will be as to what will be order of performance which the nature of the transaction requires. The permission to sell affected the competency of the appellant to transfer the property. Section 7 of the Transfer of Property Act provides that every person competent to contract and entitled to transferable property is competent to transfer such property, in the circumstances, to the extent and in the manner allowed and prescribed by any law for the time being in force. The permission of the District Officer/Collector was the essential precondition to the competency of the appellant to transfer. Therefore, unless he obtained that permission there was no question and no need of paying the moneys under the terms of the agreement. Therefore, in the very nature of things the permission ought to have been obtained first as it was the first step in the series of acts to be performed by the respective parties and thereafter the question of payment of moneys would arise.
26. In the authority Nathu Lal v. Phool Chand (AIR 1970 SC 546) (supra) it was said after making the above quoted observation "Phool Chand (purchaser) could be called upon to pay the balance of the price only after Nathulal performed his part of the contract" (the obtainment of sanction of the authority concerned). It would be unjust and inequitable to first require the contesting respondents to pay the amount in advance to the appellant who did not obtain the requisite permission from the District Officer/Collector, which was compulsory as before the said permission is obtained the title of the appellant would not be transferable, the permission to sell being an essential pre-condition to make him competent to transfer.
27. Now the question is as to what are the consequences which flow from the failure to obtain the permission to sell during the period 1-11-73 to 31-10-75. In the present case where such a permission was necessary to obtain for executing a sale deed in terms of the compromise, Section 54 of the Indian Contract Act giving effect of default as to that promise which should be first performed in contract consisting of reciprocal promises. It says as follows :
"54. Effect of default as to that promise which should be first performed in contract comprising of reciprocal promises:--When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract."
28. In this appeal the defendant No. 1-appellant who has failed to obtain the sanction, is not seeking that the contesting respondents should pay him money which was their reciprocal promise, offering to execute the sale deed on such payment being made. Here, it is the other side, namely the contesting respondents who was seeking specific performance keeping the contract alive. They are not seeking any compensation from the defendant No. 1 -appellant for breach of contract in failure to obtain sanction to sell from the District Officer/Collector. This takes us to the question whether the present bar put under Section 16(a) of the Specific Relief Act applies. It is true that where the contract stipulates mutual obligations to be performed by the parties, a party is not entitled to complain of non-performance of later obligation by the other party without performing his earlier obligation under the contract as held in the authority Kamala Bala Biswas v. Kalachand Sarkar (AIR 1996 Cal 81). There was an authority of the Apex Court International Contractors Ltd. v. Prasanta Kumar Sur(deceased) (AIR 1962 SC 77), in which the purchaser had denied that there was any agreement to reconvey and it amounted to a complete repudiation of the contract to reconvey and in those circumstances it was said that in the cases of this kind no question of formal tender of the amount to be paid arises and the question to be decided is not whether any money was within the power of the seller but whether the purchaser definitely and unequivocally refused to carry out his part of the contract and intimated that money will be refused if tendered. The observations in this authority have to be read against the background of the peculiar circumstances of the case. The material question there was whether under the circumstances of that case formal tender of the money was necessary to entitle to succeed in the suit for specific performance. There was no plea that the plaintiff was not ready and willing to perform his part of the contract. It has been held in the authority Edridge v. R.D. Sethna (AIR 1933 PC 233) that in a case of repudiation, the other party can treat the repudiation as determining (i.e. terminating) the contract and claim damages under Section 53 of the Indian Contract Act but if he does not take that course, the repudiation does not affect the rights and liabilities of the parties. The same view was taken in the case of Saral Kumar v. Madhusudan (AIR 1964 Cal 556). It was held that even when the defendant tries to evade performance, the plaintiff will not be absolved from the liability of alleging and proving readiness and willingness and their continued existence, if they sought specific performance of the agreement for reconveyance. In the authority Sanmugal Pillai v. Anna Luxmi Ammal (AIR 1950 FC 38) it was laid down that agreement to repurchase is in the nature of concession and previlage. The contract of reconveyance was a beneficial right and it would arise upon the performance by the beneficiary of the stipulated act in stated manner as held in the authority K. Simrathmull v. Nanjual Ingiah (AIR 1963 SC 1182).
29. It has been held by the Apex Court in the authority N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao (AIR 1996 SC 116):
"Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution (of the contract to sell) till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
30. It is true that as held in the case of Nathufal (AIR 1970 SC 546) (supra) as regards to prove readiness and willingness the purchaser need not produce money or vouch a concluded scheme for financing the transaction. It would be a question to be determined from the entirety of facts and circumstances in every case whether the plaintiff was in a position to pay i.e. whether he could, if he wanted and raise the money he required. It is incumbent upon him to satisfy the Court that he was ready and willing to pay the money and that he has made preparation and arrangement for securing the purchase money.
31. It is settled law that time would be the essence of contract agreeing to reconvey the property within the specified time. It is also not in dispute between the parties that lime was the essence of this contract to reconvey.
32. The learned counsel for the plaintiff-contesting respondent pointed out that the contesting respondent had sent a notice on 23-10-1975 to the appellant Bishambhar Nath Agarwal, defendant No. 1-appellant, asking the defendant No. 1 to get the sale deed executed and registered by 31-10-1975 and the draft sale deed was also enclosed with the notice, that they had also given a telegram to Bishambhar Nath Agrawal, appellant, on 29-10-1975 and that on 30-10-1975 they had purchased the necessary stamps for execution of the reconveyance deed. In this regard, reference has been made to the testimony of Mahesh Chandra, P.W. 1, who was plaintiff No. 3 in the original suit and was respondent No. 3 in the present appeal. Hehas pointed out to the testimony of this plaintiff-respondent, that on 30-10-1975 they had gone to Gwalior to meet Bishambhar Nath Agrawal appellant but appellant Bishambhar Nath Agrawal declined to meet, though he was seen there. He has testified that he, his sister's husband Mahesh Chandra Agrawal, Advocate, and his Bhanja-Damad Ramesh Chandra Agrawal had gone to Gwalior and that they were accompanied by another relation Ram Swaroop Garg and his son Devendra Kumar. He also testified that they had given a telegram from Gwalior whose copy was filed in the execution case. He has also filed the receipt of payment of toll while going for Gwalior. Reference was also made to the testimony of Mahesh Chandra Agrawal, P.W. 2, who had accompanied Mahesh Chandra, P.W. 1, to Gwalior. On 30-10-1975. He (P.W. 2) had testified that on going to the house of Bishambhar Nath Agrawal appellant, he gave a horn of his car and had given a call, whereupon, Bishambhar Nath Agrawal-appellant whom he recognised well, peeped from the upper storey of the house but when they went to the upper storey, Bishambhar Nath Agrawal appellant did not have any talk with them and the wife of Bishambhar Nath Agrawal appellant told them that Bishambhar Nath Agrawal had gone out of station and on telling by him to Bishambhar Nath Agrawal's wife that he has just then heard the voice of Bishambhar Nath Agrawal, she said: "TUMHEN GALATFAHMI HUYEE HOGI."
33. Learned counsel for the plaintiffs-contesting respondents also pointed out that on 30-10-1975 the contesting respondents had gone to the Sub-Registrar's office and an application was moved there by Kishan Chandra, plaintiff No. 1-respondentNo. 1 , at 10.00 a.m., that another application was moved again by Kishan Chandra at the Sub-Registrar's office in the evening showing their presence there thoughout the day. In this regard, reliance has been placed on the testimony of Mahesh Chandra, P.W. 1, aforesaid.
It has been argued on the strength of all this evidence and also the earlier noted circumstance that no application was made by Bishambhar Nath Agrawal appellant before the Zilla Adhikari for permission to sale, that Bishambhar Nath Agrawal-appellant was evading reconveyance. In regard to this avoidance, there is no reason to doubt the testimony of the aforesaid witnesses, though Bishambhar Nath Agrawal had claimed in the testimony at the trial that the notice sent by the plaintiffs-contesting respondents had been received by him on 11-11-1975 and that on 30-10-1975, he was not in Gwalior but had gone to Guna and had denied having seen Mahesh Chandra Agrawal, P. W. 2, at Gwalior on the date. However, as noted earlier, the conduct of Bishambhar Nath Agrawal-appellant evading having to reconvey the property in dispute to the plaintiffs-contesting respondents would have absolved them from performing their part of the contract i.e. from paying money and obtaining reconveyance deed arid entitled them to treat the contract as cancelled and seek compensation from him for the breach of contract by him. But if they did not choose to do so but instead treated the contract as subsisting and desired to enforce the specific performance of the contract by Bishambhar Nath Agrawal appellant, they would still have to prove their readiness and willingness as contemplated in Section 16(c) of the Specific Relief Act.
34. The conduct in giving the notice of the telegram, the purchase of necessary stamp papers, going in person to Gwalior and then going to the Sub-Registrar's office on 31-10-1975 and remaining present there, no doubt, tends to show the willingness of the plaintiffs-contesting respondents to obtain the reconveyance but in order to succeed in getting a decree for specific performance, not only the willingness which is mental process is required to be proved, but the readiness is also to be proved which is something to do with translating that will into action and is preceded by necessary preparation for being in a position to be ready. By readiness is meant the capacity of the plaintiff to perform the contract which includes his financial ability to pay the purchase price. This takes us to scrutiny of the evidence and circumstances having bearing on this second aspect i.e. the aspect of readiness to perform the plaintiffs' part of the contract.
35. The Specific Relief Act is supplemental to the Indian Contract Act.
36. The readiness to perform the essential terms of the contract which are to be performed by the person seeking specific performance contemplated in Section 16(c) of the Specific Relief Act has to be one in accordance with the order of performance required under Section 52 of the Indian Contract Act and in the manner of performance required under Section 50 of the Contract Act. Section 52 of the Contract Act runs as follows :
"Order of performance, of reciprocal promises :-- Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires."
37. Section 52 thus provides that where the order of performance of reciprocal terms is expressly fixed by the contract, they shall be performed in that order. Section 50 of the Act runs as follows :
"Performance in manner or at time prescribed or sanctioned by promisee:-- The performance of any promise may be made in any manner or at any time which the promisee prescribes or sanctions."
38. So, it is the promisee who has to prescribe the manner of performance of any promise. It may be prescribed in the agreement itself.
39. The relevant terms and conditions are laid down in Sub-clauses (a), (b) and (c) of Clause 3 of the Compromise agreement. These are available at pages 202 and 203 of the paper book. These clauses are as follows :
(a) That the plaintiffs would pay a sum of Rs. 1,02,120/- (Rupees one lac and two thousand, one hundred and twenty) to the defendant within a period of two years starting from 1-11-1973 and latest up to 31 st October, 1975 (thirty first October nineteen hundred seventy five) or earlier to 31-10-1975.
(b) That the mode of payment of above sum of Rs. 1,02,120/- would be that the plaintiff can pay this amount at one time in one instalment or in several instalments within the stipulated period but no instalment can be less than the amount of Rs. 5000/- (Rupees five thousand only) and such payment would be made by the plaintiffs through a crossed account payee draft in favour of defendant on any bank at Gwalior.
(c) That as soon as the payment of the whole amount as per Clause (3)(c) above plus upto date rent amount due against plaintiff is made the defendant shall execute a reconveyance deed in their favour the expenses of the reconveyance deed and registered would be borne by the plaintiff.
Sub-clause (c) lays down the following order of performance; step I payment of the whole amount specified in Sub-clause (a) (Rs. 1,02,120) and upto date rent amount at the rate mentioned in Sub-clause (a), by plaintiffs-contesting respondents Nos. 1 to 4. Step-II execution of reconveyance deed by Bishambhar Nath Agrawal, defendant No. 1 appellant.
40. The learned counsel for the plaintiff-contesting respondents relied on AIR 1962 Cal 103 (Naiuk Lal Karmarkar v. Shanker Lal Shah) where it was said that, "the ordinary rule governing vendors and purchasers is that the payment of the consideration is to be simultaneous with the execution of the deed and shall be made at the time when the conveyance is executed by the vendor." However, this authority itself lays in the same para, "in any particular case, however, the parties may agree to deviate from the ordinary rule," Their lordships further said in para 35, "But if under the order of performance of reciprocal promises expressly agreed upon, the tender of the money came first, then even though a party to the contract had wrongfully repudiated to reconvey, the party aspiring specifically to enforce the contract must perform the condition precedent, on his part, before he becomes entitled to the relief."
41. It has been argued by the learned counsel for the plaintiffs-contesting respondents that Sub-clause (a) does not lay down that payment must be made before hand and not simultaneously and so the words in Sub-clause (c) 'as soon as the payment is made' shall not be taken as intending deviation from the normal rule. This argument cannot be accepted even for a moment.
42. The manner of performance was laid down in Sub-clause (B).
43. The argument of the counsel for the appellant is that the above quoted Sub-clause B clearly speaks that the payment was to be made by the plaintiffs through a crossed account payee draft in favour of defendant No. 1 on any bank at Gwalior, that Kishan Chand P. W. 1 had admitted in his cross-examination that he did not get any draft prepared in favour of defendant No. 1 appellant, that in this way, the manner of payments as enjoined in Clause 3(B) of the compromise were not at all complied with and that hence, any amount of readiness in any other manner on the part of the plaintiffs by making arrangement for the money, giving notice to defendant No. 1, sending telegram and remaining present at the Sub-Registrar's office will not amount to a due performance of the contract.
44. The contention of the learned counsel for the plaintiffs-contesting respondents was that the mode of payment by Bank draft prescribed in Sub-clause (B) was only an enabling provision and further that it related only to payments in instalments and would not mean that the payment of balance amount at the time of execution of the reconveyance deed was also required to be made through bank draft. He submitted that cash payment would have amounted to an equally valid payment in accordance with the agreement and that furthermore there could be no difficulty in getting a bank draft prepared when cash was available.
45. I have given my anxious consideration to the rival contentions, payments by crossed account payee draft is a recognised mode having its meaning and significance. It was not an empty formality. A finder cannot take cash payment of an account payee draft and such a draft can be deposited only in the account of the payee, and consequently, it is a safety device which excludes risks that follow in handling and carrying hard cash. In this case, the appellant was admittedly resident of Gwalior while the contesting respondents were residents of Agra where the disputed property was situated and so the term of payment by A/c payee bank drafts payable at Gwalior must be deliberate. The term was meaningful not only about the payment by instalments from time to time but also about the last payment. It may be said that the deed of conveyance was to be executed and registered only at Agra where the property in suit was situated but the terms of Clause 3 read together tend to show that the parties contemplated payments up to the last penny at Gwalior or at any rate by account payee draft payable at Gwalior as under the agreement, defendant No. 1-appellant was obliged to execute and get registered the reconveyance deed (at Agra) only after receiving before hand, all the payments by the A/c payee bank drafts payable at Gwalior. So all the payments were at par with each other. In fact, if any payment was to be made and accepted at Agra by defendant No. 1 appellant (who was resident of Gwalior) in terms of the scheme of the agreement, it was all the more necessary that the payment at Agra be made by A/c payee bank draft payable at Gwalior. Payments by A/c payee bank draft rule out false claims of oral payments having been made. Infact, where substantial payments were involved payment by A/c payee bank draft is always preferred unless it is a black money transaction. If payment was to be accepted at Agra then it was all the more necessary that payment be made by drafts as security feeling cautioned against carrying huge quantity of money in cash from Agra to Gwalior and if payment was to be accepted in cash in that case the charges for preparation of bank draft were to be borne by the defendant No. 1 appellant. So I conclude that the term for payment of instalments by account payee draft payable at Gwalior was an essential term of the agreement and that it covered every payment of money.
46. The argument of the learned counsel for the plaintiffs-contesting respondents that the words 'such payment' in Sub-clause (B) showed that the requirement of payment by draft was only about payment in instalments and not about lump sum payment cannot be accepted for the simple reason that Sub-clause (B) speaks of payment of the entire amount in one instalment or several instalments and provided the mode of payment of instalment which will mean that (sic) at applied even if payment was made in one instalment. If smaller amounts of Rs. 5000/- or more were required to be paid by account payee drafts, it cannot be said that this consideration did not apply if payment was made in one instalment.
47. Section 50 of the Contract Act did not contain anything that may warrant this Court to grant any relaxation in regard to the manner of performance as stipulated by the parties in their agreement. A contract is law for the parties to it. It is only the promisee (in this case the defendant No. 1 appellant) who could accept performance in the different manner that was being offered by the promisor. So the contention of the learned counsel for the defendant No. 1 appellant is accepted and it is held that the manner of payment as enjoined in Clause (B) of the compromise agreement were not complied with and so any amount of readiness in any other manner on the part of the plaintiffs/ contesting respondents will not amount to a due performance on their part of the contract.
48. Even assuming, though by no means holding, that payment by bank draft was not an essential term of the agreement the readiness for whose performance was to be established to entitle the plaintiffs-contesting respondents to have decree for specific performance of the agreement to reconvey the material on record and the totality of the circumstances leave no doubt that the plaintiffs-contesting respondents were never in a position to pay the money and take the reconveyance in terms of the contract. Mahesh Chandra P.W. 1 who was plaintiff No. 3 in the suit and respondents No. 3 in this appeal, no doubt, claimed in para 9 of his evidence (at page 54 of the paper book) that he was always ready and is even now ready to pay the money payable to the appellant in terms of the compromise agreement but the general statement by him cannot be taken at its face value. He stated further in para 10 of his evidence that he had made an arrangement for Rs. 90,000/- with Permanand Puri and Vishnu Ram Nagar and Ikrarnama paper No. 84-Ka has been executed between him and other plaintiffs on the one hand and Permanand Puri and Vishnu Ram Nagar on the other hand and that Permanand Puri and Vishnu Ram Nagar had also signed this document. In his cross-examination, he testified in para 17 (page 57 of the paper book) that he and his brothers Bishan Chandra and Kishan Chandra (all plaintiffs in the suit) used to do the work of Government Theka and business of cement jointly, that all the 3 were partners in the firm which they had started in the year 1964, that they had taken loan about Rs. 25,000/- from the State Bank of India against the stock of that business, that the said loan has not been repaid as yet and the bank has filed a suit and sold the pledged stock in it. He also admitted that the suit of the bank has been decreed against them and that the money of that decree is still unpaid. He further stated in para 26 of his evidence (page 61 of the paper book) that Vishnu Ram Nagar and Permanand Puri has not given any money to them in cash nor had they got any bank draft prepared in favour of Bishambhar Nath Agrawal defendant No. 1 -appellant for any amount. He stated further in para 28 of his evidence that on 21-10-1975 they had calculated and found that about Rs. 1,40,000/- were due to be paid (for reconveyance). It was also elicited from him in para 31 of his evidence (page 64 of the paper book) that in the year 1975 sale tax dues were outstanding against them (the plaintiffs-contesting respondents). He was suggested at the close of his cross-examination that they had no arrangement of money for taking the sale deed and that Vishnu Ram Nagar and Permanand Puri also had no arrangement of money. He of course, made a denial of the suggestions but his denial can hardly be taken at its face value.
49. Mahesh Chandra Agrawal P.W. 2 claimed in his evidence in para 2 (page 68 of the paper book) that the plaintiffs of the suit had made arrangement of money for reconveyance of the house. But he did not give any details about it. He then claimed that if the defendant No. 1 --appellant had come to Agra for executing the reconveyance a deed, then if need be, he also could give money (for taking that reconveyance from appellant) and that even on the date of his evidence, he could make an arrangement for Rs. One lac or two. However, he did not furnish any material to show his financial soundness to that extent. In his cross-examination, he admitted that the plaintiff-contesting respondents never demanded any loan from him out of sense of shame. He failed to disclose the position of money in his Roker Bahi (cash book) on 30-10-1975 and 31-10-1975. The matter of importance is that he said that it is correct that because plaintiffs-contesting respondents had not asked him up till 30-10-1975 to make arrangement of money, he had not made any arrangement of any money for the purpose of the reconveyance. Further cross-examined, he stated in para 9 of his evidence (page 71 of the paper book) that the plaintiffs-contesting respondents had about 40,000/- with them on 30-10-1975 but there is no value of even this statement in the absence of an assertion by Mahesh Chandra P.W. 1 in his testimony at the trial about the hard cash which was available with the plaintiffs-contesting respondents on 30-10-1975 and 31-10-1975. Further asked he stated that on 31-10-1975 Vishnu Ram Nagar and Permanand Puri, both had brought money in cash but had not brought any bank draft got prepared by them. It is also noticable that he did not say how much money Vishnu Ram Nagar and Permanand Puri had brought with them to the sub-registrar's office on 31-10-1975. It is significant that Permanand Puri and Vishnu Ram Nagar were not examined as witnesses by the plaintiffs-contesting respondents in the trial of the suit. There was no doubt, an agreement (paper No. 84-Ka) relied upon by the plaintiffs-contesting respondents to corroborate their claim of arrangement with Permanand Puri and Vishnu Ram Nagar about financing of Rs. 90,000/-. This document (paper No. 84-Ka) was unilateral and it was not executed by Permanand Puri and Vishnu Ram Nagar. They were only attesting witnesses to the agreement (paper No. 84- Ka) and consequently were not legally bound by it.. A copy of this agreement, (paper No. 84-Ka) is available at pages 140 to 143 of the paper book. The material terms of the same were that Permanand Puri and Vishnu Ram Nagar had made firm promise to give loan of Rs. 90,000/- to the plaintiffs-contesting respondents and so promissing to take loan of Rs. 90,000/- from the said Permanand Puri and Vishnu Ram Nagar bind themselves with the following terms;
"YAH KI JIS WAKT HAM MUKIRAN KEY HAK MEN UPROKT SRI BISHAMBHAR NATH AGRAWAL TAVEY TASPHIYA ADALAT MAMUDH UPER LIKHI JAYDAD KA BAINAMA HAMAREY HAK MEN TAKMIL KARKEY REGISTRY KARA DEN, USI DIN HAM MUKIRAN APNEY UPROKT JAYDAD KA RAHANNAMA VA SHAHAR BYAJ 75 PAISE SA IKARA MAHWARI VA MIYAM DO SAL LIKHKER VIDHIVAT REGISTRY KARA DENGEY AUR UKT RUPYA UPROKT DAYNAN KE DWARA UKT BISHAMBHAR NATH AGRAWAL KO ADA KARA DENGEY."
It may be seen that this document contemplated 3 steps, one after the other.
Step No. 1 : Execution of reconveyance deed by Bishambhar Nath Agrawal defendant No. 1-appellant in favour of the plaintiffs-contesting respondents.
Step No. II: Execution of the mortgage deed ' in respect of the house in suit (after its reconveyance in favour of the plaintiffs-contesting respondents) by the plaintiffs-contesting respondents in favour of the financiers Permanand Puri and Vishnu Ram Nagar, Step No. III : Payment of Rs. 90,000/- by financers Permanand Puri and Vishnu Ram Nagar to Bishambhar Nath Agrawal, defendant No. 1-appellant.
It was thus clear from the aforementioned terms of the document 84-Ka-I that it did not contemplate payment of a sum of Rs. 90,000/- to the defendant No. 1-appellant at the time of execution of the reconveyance deed. We have already noted that Sub-clause (c) of Clause 3 of the compromise agreement dated (sic) did not contemplate simultaneous performance of reciprocal promises of payment of the consideration money and the execution of the reconveyance deed. It instead specifically provided that the obligation to execute the reconveyance deed will arise after the entire payment is made to the defendant NO. 1-appellant before hand. As noted earlier Permanand Puri and Vishnu Ram Nagar haye not entered into witness box to affirm that they had brought a sum of Rs. 90,000/- with them to the Sub-Registrar's office but even assuming that they did come to the Sub-Registrar's office and bring with them Rs. 90,000/- in cash, there is no basis for the assumption that the plaintiffs-contesting respondents had brought with them hard cash sufficient to pay the remaining amount so as to make the alleged sum of Rs. 90,000/- and the hard cash with them equal to the amount required to be paid for reconveyance. Even assuming that the plaintiffs-contesting respondents had with them the said remaining amount it cannot be said that they were ready to perform their part of the contract which was to make payment of the entire balance amount as per Clause 3 of the agreement before hand prior to calling upon defendant No. 1 -appellant to execute the reconveyance deed. It is clear as per the terms of the document 84-Ka that the plaintiffs would not have been able to get Rs. 90,000/- from Permanand Puri and Vishnu Ram Nagar prior to the execution of the reconveyance deed. As per the terms of the document 84-Ka, the financers were to make money available only after the reconveyance deed had been executed in favour of the plaintiffs-contesting respondents and further after the plaintiffs-contesting respondents after having again become owner of the disputed house by means of the reconveyance deed, had executed i.e. in favour of Permanand Puri and Vishnu Ram Nagar. As such, even taking that the contrivance embodied in 84-A, may have been agreed upon by the plaintiffs-contesting respondents with Permanand Puri and Vishnu Ram Nagar (though the fact that Permanand Puri and Vishnu Ram Nagar did not execute the document but preferred to remain only attesting witnesses to the document and refrained from entering the witness-box at the trial tends to throw a cloak of suspicion around the transaction contemplated in the document 84 Ka-1), the defendant No. 1 -appellant Bishambhar Nath Agrawal was by no means bound to honour the alleged contrivance or understanding between the plaintiffs-contesting respondents and Permanand Puri and Vishnu Ram Nagar. Unless he could become party to any such agreement. This document Ext-84 Ka-1 could not in any manner go to show the readiness of plaintiffs-contesting respondents to pay the money in terms of the compromise agreement aforesaid. We have noted earlier that only Rs. 9180.00 were claimed to be paid after the compromise agreement and no further instalments were paid in period of two years in terms of the compromise agreement aforesaid and the State of things on 31-10-1975 we have noted above. So i t is clear that at any point of time during the said period of two years, the plaintiffs-contesting respondents had with them sufficient money in their hands to become entitled to a decree of specific performance of the agreement of reconveyance. The document 84 Ka-1 was executed on 28- 10-1975 and the terms thereof as they stood on 28-10-1975 showed that on that date the plaintiff had not the sufficient money in their hands at the time and there is nothing in evidence of the plaintiffs-contesting respondents to suggest much less show that they had made any alternative arrangement for the money to be paid to the defendant No. 1 -appellant so that they may legally call upon the defendant No. 1 -appellant to execute the reconveyance deed.
50. Since it is obvious that the plaintiff-contesting respondents were never ready to perform their part of the essential terms of the compromise agreement, the suit for specific performance has to fail notwithstanding the conduct of the defendant No. 1-appellant in evading the possibility of reconveyance. The conduct of the defendant No. 1-appellant would only have bearing on the question of costs of the suit or of this appeal.
51. Since the suit fails for specific performance of the agreement to reconvey, the prayer for relief of declaration about rent/interest being consequential and incidental thereto has also to be rejected.
52. In view of the above discussion, the appeal of the defendant No. 1-appellant is allowed and the suit of the plaintiffs-contesting respondents is dismissed. However, costs are made easy in the peculiar circumstances of the case. The appellant shall be entitled to withdraw the rent, if any (realised from the tenants of the disputed house) deposited in Court in compliance with the interim order dated 15-2-1984 passed by this Court in this appeal which was made absolute by its order dated 17-9-84.