SUKUMAR Vs. SUSHIL KANTA BANERJEE

JUDGEMENT

(1.) This appeal is by the Plaintiff in a suit for specific performance of a contract alleged to be a contract for sale of immovable properties. Plaintiff had also prayed in the suit for possession of the disputed properties by evicting the defendant therefrom and other ancilary reliefs. Plaintiffs lost in the original court of Subordinate Judge and also in the appeal. Hence this Second Appeal has been preferred in this Court.

(2.) Plaintiff's case was that defendant was the owner of the disputed properties and he had agreed to sell those to the plaintiff for a consideration of Rs. 8000/-. On 23-12-1958 an agreement for sale was executed and registered between the parties, the plaintiff having paid Rs. 3.500/- as earnest money. It was agreed that defendant shall make out a good and marketable title, deliver the title deeds and connected papers within two days from the date of registration of the agreement, clear the mortgage of the property created by him in favour of Government of West Bengal within 21 days from the date of agreement by paying up the dues of the mortgagee out of the earnest money and complete the transaction of sale within 30 days from the date of delivery of title deeds. Plaintiff alleged that he was ready and willing to pay the balance consideration and made repeated demands on the defendant to comply with the terms of the agreement but the defendant failed to do so. At the same time plaintiff also alleged that the defendant not having disclosed or paid up the dues of Government under the mortgage and also monies due to the Municipality and Calcutta Electric Supply Corporation, the plaintiff is entitled to withhold a portion of the consideration money for clearing those liabilities.

(3.) Defendant contested the suit. His case is that plaintiff really advanced a sum of Rs. 2232/- as loan at a time the defendant was in urgent need of money for maintaining his big family. The document in the form of agreement for sale was executed as security for the said loan and plaintiff gave assurances that the transaction shall be treated as a loan and security for that loan. Defendant contended that the plaintiff at best can claim refund of the earnest money with 6 per cent, interest thereon.