P G SINHA Vs. K C CHATTERJEE

JUDGEMENT

(1.) This is an appeal against the judgment and decree passed by the Assistant District Judge, 2nd Court, Nadaia dated 17/07/1986 dismissing the plaintiff-appellant's suit for specific performance of contract,

(2.) The facts, which are necessary to dispose of the appeal may be briefly stated as follows :- On or about the 12-3-83 the defendant No.1 who is the owner of the suit properly proposed to sell the same to the plaintiff for a consideration of Rs. 40,000.00 and asked for an advance of Rs. 10,000.00 to be paid within a month from that date. The plaintiff accepted the said proposal with this modification that he could not pay the advance within one month and subsequently the plaintiff sent to the defendant No.1 a sum of Rs. 8,000.00 by bank draft and offered to pay the balance amounting to Rs. 10,000.00 within two months thereafter. The defendant No.1 accepted the bank draft, waiving the time element as well as the short advance. It was agreed between the parties that the balance amount of consideration would be paid after the permission has been obtained from the Estate Manager, Development and Planning Department, Kalyani, whose permission was necessary for the transfer of the suit property as the suit property is situated at Kalyani. Therefore, both the plaintiff and the defendant No.1 applied for approval of transfer. In the meantime the plaintiff came in to possession of the suit property. Necessary permission could not, however, be obtained from the office of the defendant No.2 because certain amounts found to have been outstanding against the defendant No.1. The defendant No.1 cleared up his dues payable to the defendant No.2 in a certificate case but it was also detected that the defendant No.1 had not paid the defendant No.2 the last instalment for acquiring the house property. The said instalment was, however, actually paid by the defendant No.2 by a bank draft which was even mouth received but it was misplaced and the Department could present it for encashment. The dispute over the draft could not be resolved and the plaintiff, therefore, failed to get the transaction completed as per agreement even though tie was all along ready and willing to fulfil the part of the contract. The plaintiff by a lawyer's notice asked the defendant No.1 to execute and register the sale deed in his favour by accepting the balance amount due as per contract within 15-5-83. As the defendant No.l did not respond the plaintiff has filed the suit for specific performance of the contract against the defendant. The defendants on contesting the suit have made the following allegations. There was never any proposal for sale nor was there any acceptance of any such proposal. Under certain misconception of fact he made an offer to the plaintiff for payment of an advance of Rs. 10,000.00 by April, 1980 and invited the plaintiff to enter into a proper agreement for sale on a payment of a balance consideration of Rs. 10,000.00 but the plaintiff sent him a draft of Rs. 8,000.00 only which was not in accordance with the terms of the offer and the defendant No.1 accepted the draft on condition that the balance would be paid by the plaintiff within a couple of months. Only on such payment there could not have been a contract for sale. But the plaintiff did not pay the balance amount nor did he have any means either to pay the amount of advance as stipulated or to pay the balance consideration money and was, therefore, never ready and willing to perform his part of the contract. The plaintiff did not occupy the suit premises with the plaintiff's permission but as an employee of M/s. Andrew Yule and Co. Ltd., who are actually the tenant in respect of the suit property under the defendant No.1. The defendant No.1 sent back Rs. 8,000.00 to the plaintiff and there being no concluded contract between the parties, the plaintiff is not entitled to any relief in this suit. The defendant No.2, the Estate Manager filed a written ,statement before the learned trial Judge contending, inter alia, that the defendant No.1 had certain dues no doubt but the dues have all been paid and the dispute towards the payment of the last instalment has been resolved and the plaintiff has paid the full amount and the deed of conveyance in respect of the suit property was duly executed and registered on 10-1-1985 and the defendant No.l has become the sole owner of the property and no permission for transfer or sale is now required from the Government.

(3.) The Learned Trial Judge on considering the evidence adduced has found that there is no concluded contract between the plaintiff and the defendant No.1 over the sale of the suit property and that even if it be conceded that there was a concluded contract the plaintiff was not in a position to procure sufficient funds for the purpose of purchasing the suit property and was, therefore, not ready and willing to perform his part of the contract. In view of the above finding he has dismissed the plaintiff's suit.