BIJOY KRISHNA SAHA Vs. DUKHIRAM KARMAKAR

JUDGEMENT

(1.) This appeal arises out of a simple suit for specific performance of a contract of sale. The suit was instituted by the purchaser. It was decreed by the learned Subordinate Judge. The unsuccessful vendor Defendant has come up to this Court on appeal.

(2.) On July 7, 1944, the document, Ex. 1, was executed by the Appellant in favour of the Respondent. That document was described as a deed of agreement for sale of certain immovable properties mentioned in the schedule thereof. It stipulated inter alia for the sale of the said properties to the Respondent for a consideration of Rs. 22,000. It was recited in the said document that the said properties appertain to premises No. 83, Alipore Road and had been allotted to the Appellant under the final decree for partition in Title Suit No. 56 of 1938 of the first court of the Subordinate Judge at Alipore which decree was then under appeal to this Court at the instance of the Appellant's brother Chandi Charan Saha. Under the document (Ex. 1), the sale, referred to above, was to be free from in cumbrances and defects and was to be completed within one month from the date of the Appellant's taking separate possession of his demarcated share in the said premises No. 83, Alipore Road and it was also provided therein that if there were material or substantial modifications made by the High Court, the Respondent would not be bound to purchase the properties and that, in case of partial or minor modifications the Respondent would be entitled at his option "to make the purchase" at a "proportionately reduced" price. The document recited further the payment and receipt of earnest money of Rs. 801 and contained provision for further payments to the Appellant (vendor) out of the balance of the stipulated consideration upon the latter's requiring the same and making appropriate endorsement on the back of the said document. In the document express provision was also made for specific performance at the instance of the purchaser upon the vendor's default and forfeiture of the earnest money by the vendor is case of laches or negligence on the purchaser's part.

(3.) In pursuance of the above terms various sums were paid by the Respondent to the Appellant on diverse dates beginning apparently from August 11, 1944, the last of such payments being dated May 5, 1948. The different amounts thus paid till the date last mentioned above came up to Rs. 4,200 which together with the earnest money of Rs. 801 amounted to a total sum of Rs. 5,001 received by the Appellant from the Respondent under the deed (Ex. 1). All these are admitted payments and are also borne out by appropriate endorsements on the deed (Ex. 1). These payments may be conveniently divided into two periods, one ending with February 13, 1946, and the other with May 5, 1948, already mentioned.