P L D 1957 Dacca 296 (PLP)

IBRAHIM, J.‑

This appeal by the defendants arises ‑ out of a suit for specific performance of a contract for sale of the properties described in the plaint. The defendants committed an act of great indiscretion. They admitted the contract but falsely alleged that the contract did not relate to the properties in suit but to other properties. It was a desperate lie, for those other properties, to which they referred as being the subject‑matter of the contract, had already been disposed of by them and were in the possession of other persons. The findings are all against them, but they make no grievance of that in this appeal. Their contention here is that the plaintiff is not entitled to specific performance even though the defendants' case is false. There is no principle which prevents the defendant from taking this plea. Since the plaintiff cannot succeed except on this own cause of action, it remains always open to the defendant to plead, though his own case be false,' that the plaintiff has no cause of action which entitles him to a decree. Specified performance is an equitable relief, and though it may be lawful to grant it, the Court may yet refuse to do so. The question, therefore, is, whether in this case the plaintiff is entitled to specific performance of the contract on the facts proved. The defendants were heavily involved in debts which they had no means of paying except by sale of their lands. They applied to the local Debt Settlement Board of settlement. Sometime after the institution of the case before the Board, they decided to sell their properties to pay the debts after reduction by amicable settlement with the creditors and with the balance of the sale proceeds, to shift to Hill Tippera where lands were cheaper, to build a new home and to start life again free from debts. With that idea in their minds they made the contract sought to be enforced in this suit on the 16th of February 1942. By the contract they agreed to sell the suit properties to the plaintiff for the sum of Rs. 3,000 out of which Rs. 1,400 was advanced then and there on their delivering against stamped papers to the plaintiff for the purpose of the Kabala. It was agreed that the Kabala would be executed after settling up the matter with the creditors, when they would take the balance of the consideration. Out of the sum of Rs. 1,400 which the defendants took at the time, they immediately paid Rs. 900 to one creditor to satisfy a mortgage debt and retained Rs. 500 for the purpose of purchasing lands at Hill Tippera. At the time of this contract the plaintiff asked for possession of the lands, but the defendants refused on the ground that if they gave possession to the plaintiff, the creditors would come to know of the transaction and then it would be difficult to persuade the creditors to reduce the debts. At the reply the plaintiff was satisfied and did not press for possession. The further performance of the contract thereafter remained hanging on the expected settlement with the creditors. The contract was followed by a stalemate; this case remained lingering in the file of the Debt Settlement Board which ceased to operate from the month of Jaistha, 1351 B.S., and it was still pending at the time when the trial of this took place and has not yet been decided. In the meantime the price of land has gone up. The defendants have not yet been able to come to a settlement with the creditors, but it is, not alleged that there was any slackening of efforts on their part. The plaintiff, of course, asked the defendants repeatedly to execute the Kabala; but the latter refused on the ground that they had not been able to come to any settlement with the creditors. The last refusal was on the 20th of January 1945. The plaintiff instituted this suit on the 13th of February 1945. All these facts, which have been established by the evidence of the plaintiff himself, clearly go to show that the agreement was that the contract would be completed after settlement with the creditors. The defendants from the very beginning laid great stress on that. They were heavily involved in debts, and their whole scheme was that they would sell their lands, pay their creditors, save some money by amicable settlement with them, and with that money would shift to Hill Tippera where land was cheaper. The plaintiff also agreed that the Kabala would be executed after the settlement with the creditors. He fully understood the great importance of the settlement with the creditors. He realized the difficulties of the defendants, for he did not press for possession when the defendants pointed our that if possession were delivered they won't be able to persuade the creditors to reduce the debts. Now it is admitted that there has been no settlement with the creditors; but there is no allegation that it was due to any latches or want of genuine attempt on the part of the defendants. A is not difficult to see that the question of reduction of debts has become more difficult by reason of the rise in the price of land. The rises in the price of land naturally tempts the creditors to except a better realization. Neither party foresaw the supervening fact, namely, the rise in the price of land, which has rendered the settlement with the creditors much more difficult. It may be lawful to give the plaintiff his pound of flesh; but obviously it would not be equitable to do so, for if the contract is enforced, the result will be that the defendants will sell their lands to the plaintiff but they cannot save any money to purchase lands and start a new home in Hill Tippera. Their whole scheme would fail. In any case admittedly there has been no settlement with the creditors for which the completion of the contract was deferred. In these circumstances, the plaintiff is not entitled to a decree for specific performance of contract. It will be more in accord with the principle of equity to release the parties from the contract subject to the equitable relief to the plaintiff. In the result the plaintiff's claim for specific performance of the contract is dismissed. But he will get a decree for Rs. 1,400 advanced by him to the defendants, with six per cent. simple, interest per annum from the date of the advance until realization. The appeal is allowed subject to this order in favour of the plaintiff. There will be no order as to costs in this appeal. The judgment and decree of the Court of appeal below are set aside. CHAKRABORTI, J.‑

I agree. K. B. A. Appeal allowed partly.