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specific performance
Calcutta High Court
abandonment
Kissen Gopal Sadaney vs Kally Prosonno Sett on 15 November, 1905
Equivalent citations: (1906)ILR 33CAL633

JUDGMENT

Woodroffe, J.

1. This is a suit for specific performance.

2. The defendants are seven annas share-holders in the house and premises No. 39 Clive Street, Calcutta. It is admitted that on
the 31st August 1900 they entered into an agreement in writing with the plaintiff for the sale of the premises for the sum of Rs.
20,343-12.

3. Only one of the defendants, Kally Prosonno Sett, has appeared to defend the suit, though some others have filed written
statements.

4. According to the evidence given on behalf of the defendant Kally Prosonno Sett, one at least of the defendants is willing to
carry out the contract.

5. Kally Prosonno Sett's son, Satya Gopal Sett, says that the agreement for sale was entered into to enable a debt to be
discharged, that that has since been done and that the property has considerably increased in value; that this property is the only
property the family now possess in Calcutta, and, he says, as they get their livelihood from it and from some muffassil
properties, the value of which is not stated, his father, the defendant Kally Prosonno Sett, and some others of the seven annas
sharers are now unwilling to sell it.

6. The defence to the suit, shortly stated, is that there has been such delay on the plaintiff's part as is evidence of an
abandonment of his rights under the agreement, or, at any rate, that there has been such delay as would disentitle the plaintiff to
a decree for specific performance.
7. There is no question, but that delay may imply and be evidence of release or abandonment of right. Delay of this character, if
proved, of course involves the dismissal of the suit, not merely because there has been delay, but because the right sued upon is
deemed to have been abandoned upon a proper inference from the facts proved as to delay.

8. Again, where a right is not in fact actually abandoned, delay to enforce it may induce a reasonable belief that the right is
foregone, and the party, who acts upon the belief so induced and whose position is altered by this belief to his prejudice, may
plead delay as an answer to a claim made against him. But in my opinion mere delay is not a sufficient reason for debarring the
plaintiff from relief by way of specific performance.

9. I am speaking of the case, where a defendant does not contend that the plaintiff has given up his rights, or does not contend
that he has been prejudiced by the belief that the plaintiff has foregone his rights, but of the case where the defendant simply
says: "The plaintiff has been slow to come to the Court, I have nothing more to say against his claim which, however, should be
dismissed for this delay, although his suit is brought within the period of three years allowed by the limitation Act."

10. There may be some decisions which appear to warrant such a view. But on the whole the tendency of the Courts is to
discourage the plea of laches, unless somebody has been damnified by it; and, as in this country, the period of limitation
enacted by the statue is generally very short, there is the less need for the application of the equitable doctrine relating to delay.

11. In my opinion delay is not material so long as matters remain in statu quo, and it does not mislead the defendant or amount
to acquiescence. It must be shown that delay has prejudiced the defendant. To operate as a bar to relief the delay should be such
as to amount to a waiver of the plaintiff's right by acquiescence, or where by his conduct or neglect he has, though perhaps not
waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him, if the remedy were
afterwards to be asserted. When such is not the case, any lapse of time short of the period allowed under the Limitation Act
should not disentitle the claimant to relief, to which he is otherwise entitled.

12. The great importance of the consideration of prejudice is insisted upon by the Privy Council in their judgment in the case of
Lindsay Petroleum Company v. Hurd (1873) L.R. 5 P.C. 221, 239 cited in Jamadas Shankarlal v. Atmaram Harjivan (1878)
I.L.R. 2 Bom. 133 in which their Lordships say as follows:

Where it would be practically unjust to give a remedy either because the party has, by his conduct, done that which might
fairly be regarded as equivalent to a waiver of it, or where by his conduct or neglect he has, though perhaps not waiving
that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were
afterwards to be asserted; in either or these cases lapse of time and delay are most material. But in any case if an
argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting
to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable.

13. It is necessary to make these observations, as there has been undoubtedly some delay on the part of the plaintiff in this case.
The delay considered merely as such is, for the reasons I have stated, under the circumstances of this case, no sufficient answer
to the suit.

14. Further, it has not been shown to me that the delay such as there has been has prejudiced the defendants so as to make it
inequitable to enforce the plaintiff's claim against them.

15. The real question in this suit is whether the delay on the plaintiff's part is evidence of an abandonment by him of the
admitted rights, which he possesses under the agreement in suit, for, if so, the suit must be dismissed.

16. The agreement being admitted, the burden of establishing that the rights under it have been relinquished is, it is conceded,
on the defendants. I am therefore to see whether they have done so, for if not, there being no other objection to the suit, it
should be decreed.

17. The facts upon this point are as follows:

[His Lordship then dealt with the facts, and continued.]

18. As I have said, there was undoubtedly some delay on the plaintiff's part. The question now is whether I ought to deprive the
plaintiff of the relief, to which otherwise he is admittedly-entitled. I think not. If, of course, the defendants had done all that lay
on them to do before they issued their notice to cancel on the 2nd October, and had on that date made out a good title, it was for
the plaintiff to have approved that title and to have completed the purchase within one month from the date of approval under
the terms of the agreement. But, as I have stated, the defendants did not do all that they should have done to assist the plaintiff's
attorneys. And this I think was owing to their discovery that it was not in their interest to complete the sale. It does not
therefore lie in their mouths to allege that the delay is such as to be a bar, seeing that the delay was prior to the 2nd October
1901 due to their action, or rather inaction, and that since that date they have in fact (notwithstanding some delay on the
plaintiff's part) not placed themselves in such a position as that nothing can be said against them, in that they did not, after the
2nd October 1901, supply the information which was asked for both prior and subsequent to that date.

19. I am of opinion therefore that the defendants have foiled to establish an abandonment of the plaintiff's rights, the onus of
proving which lay upon them, and that such delay as there may have been on the plaintiff's part should not, under the
circumstances of this case, deprive him of a decree for specific performance.

20. I therefore order that the agreement be specifically performed, and that, on a good and marketable title being shewn, the
property be conveyed to the plaintiff. In the event of such a title not being made, the plaintiff will be entitled to a refund of the
earnest-money (Rs. 251) and the sum of Rs. 75 in terms of the third clause of the agreement. The defendants must also pay to
the plaintiff the costs of the suit, except the defendant Satya Gropal, who has not entered appearance in the suit, and whose
costs will be on scale No. 1.