# INTERNATIONAL CONTRACTORS LTD v. PRASANTA KUMAR SUR

- **Citation:** [1961] 3 S.C.R. 579
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeal No. 205of1956
- **Bench:** J. L. Kapur, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/international-contractors-ltd-v-prasanta-kumar-sur-2051
- **Pages:** 5

## Headnote

Sale-Repudiation of contract by vendor---,Suit for specific
performance, if lies without formal tender of purchase money.
The appellant purchased the property in dispute from the
respondent but soon thereafter there was an agreement for reconveyance of the property to the respondent within a period of two
years for almost the same value for which it was sold. The
relevant clause of this agreement was as follows:-
"Clause 3-The purchase shall be completed by the purchasers within two years, i.e., to say on or be lure the roth day of
February, 1943, time being the essence of the contract. If the
purchasers shall on or before the IOth day of February, 1943, pay
to the vendor a sum of Rs. 10,001 the vendor shall at the cost
of the purchasers execute such conveyance as may be necessary
for conveying and transferring its right, title and interest in the
said property free from encumbrances, if any, created by it."
Before the expiry of the stipulated period the respondent entered into correspondence with the appellant asking for the completion of the agreed reconveyance and irttimatingthatthe purchase
money was ready to be paid; but after some correspondence the
appellant's solicitors totally repudiated the agreement for reconveyance. The respondent did not then tender the price agreed
to be paid and filed a suit for specific performance which was dismissed by the trial court on the ground that the respondent had
not paid the money. The High Court decreed the suit.
Held, that as the appellant had totally repudiated the contract for reconveyance and had failed to perform his part of the
contract it was open to the respondent to sue for its enforcement
and the High Court was right in holding that the respondent was
entitled to a decree for specific performance.
In a case of total repudiation ot"the agreement for sale it
was useless to make a formal tender of the purchase money.
Hunter v. Daniel (1845) 4 Hare 420, andChalikani v. Zamindar
of Tuni and Others (1922) L.R. 50 I.A. 41, followed . .
Ismail Bhai Rahim v. Adam Osman I:L.R. [1938) 2 Cal. 337,
distinguished

## Text

3 S.C.R.
SUPREME COURT REPORTS.
579
INTERNATIONAL CONTRACTORS LTD.
v.
PRASANTA KUMAR SUR.
(J. L. KAPUR and J. C. SHAH, JJ.)
Sale-Repudiation of contract by vendor---,Suit for specific
performance, if lies without formal tender of purchase money.
The appellant purchased the property in dispute from the
respondent but soon thereafter there was an agreement for reconveyance of the property to the respondent within a period of two
years for almost the same value for which it was sold. The
relevant clause of this agreement was as follows:-
"Clause 3-The purchase shall be completed by the purchasers within two years, i.e., to say on or be lure the roth day of
February, 1943, time being the essence of the contract. If the
purchasers shall on or before the IOth day of February, 1943, pay
to the vendor a sum of Rs. 10,001 the vendor shall at the cost
of the purchasers execute such conveyance as may be necessary
for conveying and transferring its right, title and interest in the
said property free from encumbrances, if any, created by it."
Before the expiry of the stipulated period the respondent entered into correspondence with the appellant asking for the completion of the agreed reconveyance and irttimatingthatthe purchase
money was ready to be paid; but after some correspondence the
appellant's solicitors totally repudiated the agreement for reconveyance. The respondent did not then tender the price agreed
to be paid and filed a suit for specific performance which was dismissed by the trial court on the ground that the respondent had
not paid the money. The High Court decreed the suit.
Held, that as the appellant had totally repudiated the contract for reconveyance and had failed to perform his part of the
contract it was open to the respondent to sue for its enforcement
and the High Court was right in holding that the respondent was
entitled to a decree for specific performance.
In a case of total repudiation ot"the agreement for sale it
was useless to make a formal tender of the purchase money.
Hunter v. Daniel (1845) 4 Hare 420, andChalikani v. Zamindar
of Tuni and Others (1922) L.R. 50 I.A. 41, followed . .
Ismail Bhai Rahim v. Adam Osman I:L.R. [1938) 2 Cal. 337,
distinguished
CIVIL
APPELLATE JURISDICTION: Civil
Appeal
No. 205of1956.
Appeal from the judgment a.nd decree dated
May 26, 1954, of the Calcutta High Court in Appeal
from Original Decree No. 127 of 1950.
·
1961
January 25.
· .. 5SO' .. -
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..... -
SUPRE~IE COURT REPORTS -
[1961]
\"
'·' .
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· -n. N. Mukherjee, for the a.ppella.nts •. · ....
Jnter•atio•al '\ . N. C. · ChlJtterjee a.nd R. R. Biswas, for respondents
Confra<tors Ltd. 'Nos. l(a.) a.nd 2.
· • •
v. '
-
\
p,., •• ,. Kumar
1961. Ja.nua.ry 25. The_Judg!llent of the Court was
Kapur].
delivered by ,
__
. _
- KAl'UR, J.-This is a.n a.ppea.l a.ga.inst the i"udgment
·and decree of the High Court of Judicature a.t Calcutta..
The a.ppella.nt wa.s the defendant in· the suit out of
which this a.ppe~l has a.risen a.nd respondent No: I was
-the plaintiff,· a.nd the second· respondent wa.s a. proforma. defendant. · The facts 'of this ca.se a.re these:
On Febrria.ry' 4, 1941, the·_ respondent sold the pro.
· perty in dispute to the appellant for a. sum o_f_J;!.s •. 10,000.
__ j
On February IO, 1941, there-. was a.n a.greement'·:J0r, '" _;
reconveya.nce wi~hin a. period up to February .10; ,;:· · -· ·.
1943, for a. sum of Rs; 10,001. The relevant clause
of this agreement was the third clause which was a.s
follows:-
-
· - .
-
- -
" Clausi 3.-The purchase sha.11 be completed by
the purchasers within two ye_ars, i.e., to say on or·
before the 10th da.y of February, 1943, time being
the essence of the contra.ct; If the purchasers sha.11
on or before the 10th da.y of Februa.ry, 1943, pa.y to .
the vendor a sum of Rs. 10,001 the vendor sha.11 a.t ·
the cost of the purchasers execute such conveyance
a.s ma.y be.necessary for conveying a.nd transferring
its right, title a.nd interest in the sa.id property free
from encum'bra.nces, if a.ny, created by it." ·
On November 26, 1942, the solicit<Jt"for respondent
-- No. 1 wrote a. letter to the a.ppella.nt s.tating that that
_respondent wa.s rea.dy. a.nd willing to ha.ve the pur. _
chase, completed_ a.s early as. possible on payment of
__ -Rs. IQ;OOl •. Along with that letter a draft conveyance
was sent for- a.ppto'val but a.II this was· subject to the
result of a. search a.s to the encumbra.'lces, if any; :
.created by the appellant. On November 30,1942, the
. solicitors for the a.ppella.nt company wrote back saying - -
; tha.t immediate a.rra.ngements should be ma.de for
giving inspection of the_ agreei:nerit of sa.le on which the
respondents were relying a.s the a.ppella.nt wa.s utia.ble ·
to trace the copy of the said agreement from its record.
I
I
38.C.R.
SUPREME COURT REPORTS
581
Again on December 11, 1942, the respondent's solicitor
sent a letter stating:
International
"My client is very eager to complete the purchase Co1t1ractors Ltd.
and the full consideration money therefore is lying
v.
idle in his hands awaiting the return of the relative Prasanta Kuma.
draft conveyance as approved by you on your
Sur
clients' behalf."
To· this the reply of the appellant's solicitors dated
December 18, 1942, was:-
"Our clients deny that there was any concluded
or valid agree:nent for sa.le with your client or with
any other person in respect of the above premises."
On June 10, 1943, respondent No. l filed a suit for
specific performance and in the alternative
for
redemption on the footing that the transaction was in
reality a mortgage.
The trial court dismissed the
suit on May 16, 1950, holding that the transaction on
the basis of which the suit was brought was not a
mortgage but was out and out sale with an agreement
for repurchase and as the vendor had not pa.id the
money " punctually according to the terms of the
contract, the right to repurchase was lost and could
not be specifically enforced", and the court had no
power to afford any relief against forfeiture of this
breach. The plaintiff-respondent took an appeal to
. the High Court and it was there held that the failure
on the part of the respondents to actually tender the
amount of the consideration does not bar a suit for
specific performance because after the repudiation of
the contract by the appellant, the tender would have
been a useless formality. The appeal was therefore
allowed and the suit for specific performance decreed.
It is against this judgment and decree that the a.ppeJ.
!ant has come in appeal to this Court.
The correspondence which has been proved in this
case shows that when the respondent's solicitor
called upon the appellant to reconvey thf property
in dispute to the respondent and also sent a draft
conveyance, the appellant denied that there was
any concluded or valid agreement for sale in respect
of the prop!)rty in dispute. This was a complete
repudiation of the contra.ct to reoonvey which the
Kapu• ].
582
SUPREME COURT REPORTS
[1961]
•
x96x
appellant had agreed to by ·cl. 3 of the agreement
I I
I.
1
which has been set out above. As the appellant had
n erna iona
,
.
c ontiactors Ltd. repudiated the contract and had thus failed to carry ·
v.
out his part of the contract it was open to the respond.
Prasanta Kumar ent to sue for its enforcement. But it was argued on
Sur
behalf of the appellant that the respondent did not
Kapur].
tender the price, i.e., Rs. 10,001 nor was be in a position
to do so and in that view of the matter the respondent
is not entitled to get a decree for specific performance.
In 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 respondent but whether the appellant
definitely and unequivocally, refused to carry out his
part of the contract and intimated that money will
be refused if tendered. The principle laid down in
Hunter v. Daniel (1) is applicable to cases of this kind.
In that case Wigram, V. C., stated the position as
follows:-
" The practice of the Courts is not to require a
party to make a formal tender whare from the facts
stated in the Bill or from the evidence it appears
the te~der would have been a mere form and that
the party to whom it was made would have refused
to accept the money."
Lord Buckmaster in Ohalikani Venkatarayanim · v.
Zamindar of Tuni (')accepted this statement of the law
and observed:-
"Their Lordships think that that is a true and
accurate expression of the law, and the question
therefore is whether the answer that was sent on
behalf of the mortgagee amounted to a clear refusal
to accept the money."
This principle applies to the facts of the present case
also and the question is whether the answer sent on
behalf of the appellant amounted to- an unequivocal
refusal to carry out its part of the contract which in
our opinion it was.
It was next contended that the offer made by a
solicitor is not a proper offer in law and therefore when
(1) (1845) 4 Hare 420: 67 E.R. 712-
(2) (1Q2') L.R. 50 I.A. 41, 47.
·I
t
3 S.C.R.. SUPREME COURT REPORTS
583
the solicitor for the respondent called upon the appellant to execute the documents they were not bound to
do so. We are unable to accord our assent to this
proposition. The case upon which the Counsel for the
appellant relied, i.e., Ismail Bhai Rahim v. Adam
Osman (1), in our opinion has no application to the
facts and circumstances of this case. It was held in
that case that the offer made by a promisor through
a solicitor to pay a debt with interest thereon at the
date of the offer does not of itself afford a reasonable
opportunity to the. promisee of ascertaining that the
promisor is able and willing to perform his promise.
Unless there is something peculiar in the circumstances of that case that case does not lay down good
law. It is difficult to see why a tender made through
a solicitor who is for that purpose an agent, is not a
proper tender.
In our opinion the High Court rightly .held that the
respondents were entitled to a decree for specific performance and we therefore dismiss this appeal with
costs.
Appeal dismissed.
STATE OF MADHYA PRADESH
v.
AHMAD ULLAH.
(A. K. SARKAR and N. RAJAGOPALA AYYANGAR, JJ.)
Murder-Plea of unsoundness of mind-Crucial time-Acquittal
-High Court's refusal to reverse, if justifiable-Indian Penal Code,
ss. 84, 3oz.
The High Court affirmed an order of acquittal of the respondent on a charge of murder under s. 302 of the Indian Penal Code
passed by the Sessions Judge on the ground that the accused was
of unsound mind. The prosecution case was that the accused
committed the murder of his mother-in-law against whom he had
borne ill-will, by severing her head from her body while she was
asleep at dead of mght. He made" confession of the crime but
a plea of insanity was taken at the trial. · On appeal with special
leave by the State :
·
H dd, that the crucial point of time at which unsoundness of
mind should be established is the time when the crime jg actually
(1) I.L.R. [1938] 2 Cal. 337.
75
I96I
lnlef'national
Contractors Ltd.
v.
Prasanta Kum at
Sur
Kapur J.
z96z