JHARNA MAJUMDAR Vs. SUPROBHAT BHOWMICK

JUDGEMENT

(1.) In this appeal the judgment and decree dated 8th Jan., 1999 passed by the Learned Assistant District Judge, Malda in O.C. Suit No. 33 of 1996 has since been challenged. The learned Counsel for the appellant submits that the agreement could not be performed in view of Sec. 29, 62 and 56 of the Contract Act. According to him, it is void and vague. He has also pointed out that by reason of Sec. 14 read with Sec. 16 of the Specific Relief Act (SR Act) the contract cannot be specifically performed. He has contended that under Sec. 20 of the SR Act the discretion rests with the Court either to grant specific performance or to grant compensation. Relying on the materials on record, he has pointed out that this is a case where the contract could not be specifically performed. In particular he has pointed out fact that there was an oral agreement, which was sought to be superseded by a written agreement and, therefore, the original agreement could not be performed. He further points out that there was nothing to indicate that how and where the construction is to be made and what would be the rent for letting out the same. He also points out that PW2 and 3 have referred to the agreement for sale not for letting out. Thus, on the basis of such contradiction, there is no proof that there was an agreement, specific performance of which is asked for. In the circumstances, he has prayed that the judgment and decree should be set aside. Submission on behalf of the Respondent :

(2.) Mr. Bidyut Kumar Banerjee, learned Counsel for the respondent, on the other hand, contended that the defendant has admitted not only in the written statement but also in her deposition that there was an oral agreement for letting out. In view of such admission, the specific performance should be granted. When the oral agreement is supported by a written instrument showing the receipt being the consideration for agreement, as he has pointed out, there is no uncertainty or vagueness of the contract. The construction was to be made at the place the measurement whereof and the site in the plan has been shown and approved. He also contends that none of the provisions of the Contract Act or the Specific Relief Act as referred to by Dr. Mondal could be of any use so far as the facts of the present case are concerned. The materials are overwhelmingly in favour of the plaintiff that there was an agreement and that the plaintiff was always ready and willing to perform his part of the contract and as such the Court has rightly granted the decree of specific performance. Reply on behalf of the Appellant :

(3.) Dr. Mondal in reply pointed out the there is nothing to show that the plaintiff was ready and willing to perform his part of the contract. On the other hand, he has not performed essential part of the contract, namely, by making payment of the amount. In his deposition, the plaintiff stated that he was asked by the defendant to pay after the construction is made. It is not his case that he tendered or offered to pay. it is a case that he had asked when he was supposed to pay. This itself shows that he was not ready and willing to pay.