PRABIR DAS Vs. KINU RAM MONDAL

JUDGEMENT

(1.) The present appeal is directed against the Judgment and Decree dtd. 15/3/2010 passed in Title Suit No. 125 of 2005 by the Learned Civil Judge, Senior Division, 7th Court, Alipore, whereby the suit for specific performance of the Appellants was dismissed.

(2.) Briefly, the plaint case is that the Respondent, being the absolute owner of schedule - B land, entered into an agreement for sale on 13/6/1995 with the Appellants in respect of that property for a consideration of Rs.6,500.00 per cottah. In terms of the agreement, the Appellant was to develop the land by filling earth and making roads therein. On execution of the agreement, the Appellants paid a sum of Rs.62,501.00 to the Respondent. It is the case of the Appellant that about rupees five lakhs were invested by the Appellants for development of the land and they paid further sum of consideration money to the extent of Rs.2, 24, 400.00, from time to time, to the Respondent, apart from the initial payment of Rs.62,501.00. The Respondent sold out, from time to time, in terms of the agreement, 2 bighas 1 cottah 15 chitaks of land, to different persons nominated by the Appellants wherein the later stood as a confirming party. It is the Appellants ' case that so far as remaining 2 bighas 15 cottahs 7 chitaks of land are concerned, the Respondent deliberately neglected to sell the same land to the Appellants or nominated persons. The matter was intimated to Zinjira Bazar Police Investigation Centre on 1/12/2001 in the form of a general diary having GD Entry No. 23 dtd. 1/12/2001. Thereafter, at the intervention of the well - wishers, the Appellants tried to settle the matter. From 28/2/2003 onwards, the Respondent was unwilling to abide by the terms and conditions of the agreement and finally the Respondent cancelled the agreement for sale dtd. 13/6/1995 through a letter dtd. 27/3/2003 written by the advocate of the Respondent. In the wake of such revocation, criminal proceeding was initiated by the Appellants and the original suit in respect of the unsold part of schedule "B " property which is described in schedule "A " of the plaint was filed praying for specific performance of the contract, along with prayers of permanent injunction restraining the Respondent from selling, transferring or encumbering the suit property, a prayer of mandatory injunction directing the Respondent to execute and register a deed of conveyance; along with damages and other remedies.

(3.) The suit was contested by the Respondent. In the written statement, execution of the agreement for sale supported by consideration at a rate of Rs.6,500.00 per cottah was admitted. It was denied that possession was handed over to the Appellants. It was also specifically averred that time was essence of contract. It was contended that the Appellants developed a better portion of the lands covered under agreement for sale which were sold to different purchasers and that the Appellants showed reluctance and made delay in developing the rest of the land described in schedule "A " of the plaint. Since the Appellants failed to develop the remaining part of the land within stipulated period of time, agreement for sale was revoked with effect from 1/1/1999 in terms of letter dtd. 27/3/2003 written by the Learned Lawyer of the Respondent.