SAMBHUNATH MUKHERJEE Vs. BIMALA DEBI SAHARIA

JUDGEMENT

(1.) This is an appeal from a judgment dated August 29,1959," of the Judge, Fourth Bench of the City Civil Court, Calcutta.. The short facts of the case are as follows: The Plaintiffs entered into an agreement with the Defendant on May 27, 1957, by which the Plaintiffs agreed to buy and the Defendant agreed to sell 16 cottahs, 4 chatacks and 26 sq.fit. of vacant land in premises No. 3A Short Street, Calcutta, on certain terms and conditions. One of the conditions was that the Defendant-vendor must make out a good and, marketable title to the suit property to the satisfaction of the Plaintiffs' Solicitor Mr. P. K. Bose. The Plaintiffs paid the sum of Rs. 5,001 by cheque byway of earnest money at the time of executing the agreement of sale. The Plaintiffs complain that the defendant-vender failed to make out a good and marketable title to the property to the satisfaction of the said Mr. P. K. Bose in terms of the agreement between them. The Plaintiffs further complain that the Defendant wrongfully repudiated the contract and is liable to refund the earnest money of Rs. 5,001 to the Plaintiffs; and also to pay Rs. 51 by way of costs of the investigation to the Plaintiffs. The Plaintiffs also claim Rs. 303 at 6 % per annum by way of damages. The total claim of the Plaintiffs was, therefore, for Rs. 5,355. The Defendant in his. written statement contends that the stipulation that the vendor was to make out a good and marketable title to the satisfaction of the purchasers' Solicitor only meant such satisfaction of the Solicitor as would be reasonable and normal in the usual course of such transactions. The Defendant claims to have made out a good and marketable title to the property and says that, since time was of the essence of the contract, the Defendant was entitled to forfeit the earnest money after the expiry of the period which was stipulated for the completion of the transaction. The Defendant charges the Plaintiffs with having committed breach of the contract by refusing to complete the transaction.

(2.) On these pleadings the following issues were framed by the learned trial Judge:

(3.) The Plaintiffs examined their Solicitor P. K. Bose as a witness. P. K. Bose says in his evidence that upon investigating the' title he was not satisfied with the title of the vendor to the suit property. He says that he wanted satisfactory proof about the heirs of another brother of the vendor, and such proof not having been given to him he informed the Defendant's Solicitor that he had disapproved the title of the vendor. To a question put by the learned trial Judge this witness said that the grounds of his disapproval of the vendor's title to the suit property will appear from the correspondence that took place between him and the vendor's Solicitor and from the requisition of title. The Defendant himself gave evidence. He said that he was the present owner of 3A Short Street, Calcutta. His elder brother Haripada Mukherjee, who was one of the joint owners of the premises, had died in 1915 without marrying so that Bhutnath is the sole heir of the deceased brother. In course of cross-examination it was suggested to the Defendant on behalf of the Plaintiffs that he had not agreed to execute an "indemnity bond against any charge created by the brother and any will having been executed by him". Upon this evidence the learned trial Judge decreed the suit in favour of the Plaintiffs. He held that the satisfaction of the Plaintiffs' Solicitor undoubtedly meant reasonable satisfaction on his part and that P.K. Bose was, therefore, under an obligation to show some reasonable ground for his satisfaction about the absence of a good and marketable title. The learned trial Judge, however, held that the Solicitor was quite reasonable in asking for a proof that the Defendant's brother had died intestate and that the Defendant was his sole heir. The proof that the Defendant's Solicitor wanted was an affidavit sworn by the Defendant on this account. The learned trial Judge held that the Plaintiffs' Solicitor was not bound to accept the verbal assurance of the Defendant's Solicitor. The learned trial Judge further held that the Defendant was not justified in refusing to swear an affidavit when such a valuable property was going to be purchased by the Plaintiffs at considerable costs. On these considerations, the learned trial Judge decreed the suit. The Defendant has now appealed against that judgment and decree.