LUXMI PROSAD Vs. AMULYA CHANDRA
LAWS(CAL)-1987-8-15
HIGH COURT OF CALCUTTA
Decided on August 07,1987

LUXMI PROSAD Appellant
VERSUS
AMULYA CHANDRA Respondents

JUDGEMENT

MONOJ KUMAR MUKHERJEE, J. - (1.)The appellants before us instituted the suit, out of which the present appeal arises, against the three respondents in the City Civil Court at Calcutta praying for a decree for specific performance of contract against, alternatively, for recovery of Rs. 7,000/- with interest from, the respondent 1. The case of the appellants was as follows. Sri Pran Krishna Bhattacharjee, father of the appellants, was a tenant under Respondent 1 in respect of the suit premises and the other two respondents were sub-tenants under him. In or about April, 1974 the respondent 1 agreed to sell the suit premises to the appellants and took a sum of Rs. 1,500/- as earnest money. Pursuant thereto the appellants entered into a formal agreement with the respondent 1 on Jan. 10, 1975 for purchase of the suit premises for a consideration of Rs. 45,000/- on terms and conditions embodied in the deed. A further sum of Rs. 500/- was paid to the respondent 1 on the date of execution of the agreement and on the following day another sum of Rs. 5,000/- was paid by the father of the appellants. As per clause 3 of the deed the respondent 1 was to deliver forthwith to the appellants or their lawyer Sri Prafulla KumarChowdhury certified copies of the documents of title and other relevant papers for investigating into the title but the respondent 1 utterly failed and neglected to deliver the said documents to the appellants or their Advocate in spite of repeated requests alleging difficulties due to marriage ceremony of his daughter and other pre-occupations. As a result Sri Chowdhury could not proceed with the investigation and searches and deliver any requisition before Jan. 31, 1975, the date by which the purchase of the property was to be completed in terms of the agreement.
(2.)The further case of the appellants was that they believed in good faith that the respondent 1 would honour the agreement by supplying necessary particulars and delivering the documents of title and, in fact, the respondent 1 always assured the appellants that he would do the needful as per agreement and close the deal. The father of the appellants requested the respondent No. 1 on several occasions to supply the documents of title but without any success. According to the appellants, they were always willing and ready to complete the transaction but the matter was unusually delayed due to failure on the part of the respondent 1 to perform the initial part of the contract by handing over the documents of title. Thereafter the respondent 1 through his Solicitor illegally revoked the contract for sale and the appellants through their Lawyer sent a letter refuting all the allegations made by the respondent 1 while making out a case for revocation of the contract. By a subsequent letter dt. May 19, 1975 the respondent 1, through his lawyer, informed the appellants' lawyer that the suit property had already been sold by the respondent 1 to the respondents 2 and 3. The appellants asserted that the respondent 1 could not have legally sold the property to the other two respondents in view of the contract earlier entered into by him with them. They further asserted that the purchase of the suit property by the respondents 2 and 3 was not legal and valid as they were purchasers in good faith for consideration and as they had full knowledge of the subsisting agreement between them (the appellants) and the respondent 1 and the respondents 2 and 3 contested the suit by filing separate written statements. The respondent 1 contended that he was always ready and willing to perform his part of the contract and offered to give inspection of all original title deeds relating to the suit premises and kept the same ready for the purpose but neither the appellants nor their Advocate nor anybody else on their behalf ever called for such inspection. Under such circumstances by a letter dt. Mar. 29, 1975 he called upon the appellants to complete the purchase within 7 days and gave notice that if they failed to do so the agreement would stand cancelled with effect from April 6, 1975. The respondent 1 next contended that as the appellants failed to comply with the terms of the said letter he cancelled the agreement and sold the suit property to the other two respondents. The respondent No. 1 asserted that the appellants were not even entitled to recover the amount of Rs. 7,000/- as claimed. The main defence of the other two respondents was that they were bona fide purchasers for value without notice of the agreement between the appellants and the respondent 1.
(3.)On consideration of the evidence, both documentary and oral, adduced during trial the learned trial Court held that the respondent 1 was fully justified in canceling the agreement and that it could not be said that the respondents purchased the property with knowledge of the subsisting agreement between the appellants and the respondents 1. It accordingly rejected the prayer of the appellants for a decree for specific performance of contract but allowed the alternative prayer of the appellants for recovery of the sum of Rs. 7,000/- paid against the agreement. Hence this appeal.


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