Golap Chand Agarwalla G.K. Agarwalla vs Gopal Chandra Pal

1. On 1st March, 1975 the defendant-respondent herein entered into an agreement with the plaintiff-appellant herein for sale of property mentioned in Schedule 'B' of the agreement and also a parcel of premises No. 98/1, Diamond Harbour Road, Calcutta for a sum of Rs. 25,000/. It was also agreed that the balance money shall be paid within three months. It appears that the plaintiff-appellant did not pay the balance amount and sought extension of time to pay the same. The defendant-respondent agreed to extend the time by another two months. It is alleged that despite extension of time, the balance money was not paid and therefore, the defendant-respondent revoked the agreement. It is under such circumstances the plaintiff-appellant brought a suit for specific performance of the agreement to sell in the Court of the Subordinate Judge, Alipore, 24 Parganas. The trial court found that the plaintiff-appellant did not prove his readiness and willingness to perform his part of the contract. In that view of the matter, the suit was dismissed. The plaintiff-appellant thereafter filed a regular first appeal before the Calcutta High Court. The said appeal was also dismissed. It is against the said judgment the plaintiff-appellant is in appeal before us.

2. Learned counsel for the appellant urged that the time was not the essence of the contract and the appellant was always ready and willing to perform his part of the contract and the view taken by the court below is erroneous. Both the courts have recorded a concurrent findings of fact that the time was the essence of the contract and further the plaintiff-appellant has failed to prove his readiness and willingness to perform his part of the contract. We are of the view that the said concurrent findings of fact do not suffer from any legal infirmity.

3. In that view of the matter, we do not find any merit in this appeal. It fails and is, accordingly, dismissed as such. There shall be no order as to costs.

4. It is stated at the bar that the plaintiff-appellant had deposited the entire consideration money before the High Court. If it is so, the money shall be refunded alongwith the interest, if the said deposit carries interest to the plaintiff-appellant, forthwith.