9911796707
TMI Blog1964 (1) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... te and have the sale deed registered within a period of three months from this day. The said period of three months cannot be extended for any reason whatsoever, save by the consent in writing by both the parties. But nothing, however, happened within the period aforesaid. On 30-4-1958, the last day specified for the performance of the contract, the first respondent sent a telegram to the appellant 'House sale agreement date expires today. Finish sale deed today'. There was no response to this telegram from the appellant. Correspondence, to which we shall have occasion to refer later, followed, each party accusing the other of the breach of the terms of the agreement. On 24-12-1958 the appellant, by a notice sent through his adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm his part of the contract. We shall presently refer to the evidence in the case. (6) There is little controversy as to what happened subsequent to 30-4-1958, when the first respondent sent the telegram calling upon the appellant to complete the sale. On 17-5-1958, the first respondent, by his registered notice sent to the appellant, accused the latter of having failed to perform the contract and claimed that he would be entitled to forfeit the advance of ₹ 4000 paid to him and further stated that the appellant would be liable to recoup any loss he (first respondent) might sustain by sale of the property to a third party. Evidently, as a reply thereto, on 22-5-1958, the appellant, through his advocate, sent notice complaining tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion to my client of the portion in your occupation, you are bound to return the sum of ₹ 4000 received by you as advance and also pay my client ₹ 4000 by way of damages. Your are therefore hereby called upon to pay my client the sum of ₹ 4000 received as advance and also ₹ 4000 by way of damages, within 3 days of receipt of this notice. Take notice that on default of compliance with this demand, steps will be taken through Court for recovery of the said sums. Even assuming that time was not the essence of the contract and that the first respondent was guilty of breach, it is clear from the above letter that the appellant had decided not to keep the contract subsisting but, on the other hand, had put an end to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounts to an admission that by the previous notice the appellant had put an end to the contract by claiming a return of the advance amount paid by him. It will not be open to a party to a contract, who has once elected to accept the breach assuming there was a breach on the part of the other side to cancel that election and treat the contract as if it were subsisting. We regard the notice dated 22-5-1958 as amounting to a definite abandonment by the appellant of his right to obtain specific performance of the contract. As pointed out by the Privy Council in Ardeshir Mama v. Flora Sasson, ILR 52 Bom 597: (AIR 1928 PC 208) the plaintiff in a suit for specific performance should always treat the contract as still subsisting; he has to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trust v. Surbarnabala Debi, 44 Cal WN 541 to support the contention that, notwithstanding the election by a party to a contract to accept the breach by another he could still revive, at his choice, the contract and insist upon a specific performance thereof. We are, therefore, of opinion that the learned Subordinate Judge was correct in his view that the appellant was not entitled to relief by way of specific performance. (10) The question whether the appellant will be entitled to a return of the advance amount paid, does not call for determination in this case, as the learned subordinate Judge has declined to grant him any relief in respect thereof, and no ground of appeal has been taken against the propriety of that conclusion (11) The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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