LABANYA RAY Vs. RAI SAHEB PHANINDRA MOHAN MUKHEHJEE

JUDGEMENT

(1.) IN this suit the plaintiff claims a decree for specific performance of the agreement for purchase of premises No. 202 C, Bepin Behari Ganguly Street, Calcutta, and a decree directing the defendant to deliver all relevant title deeds relating to the said premises, alternatively an enquiry into title and a decree for specific performance of the agreement to the title if found good, decree for possession of the premises and the fixtures in terms of the agreement, decree for Rs. 875/- as damages and further damages at the rate of Rs. 250/ - per month till sale is completed and possession is delivered and certain other reliefs.

(2.) THE facts briefly staled are as follows: the defendants Nos. 1 and 2, herein after referred to as the vendor defendants, were the owners of premises No. 202 C, Bowbazar Street. Sometime in November, 1960 they entered into an agreement for sale of the premises to the plaintiff through one Sagore Sen who acted as a broker in the transaction. The price agreed upon was Rs. 45,000/ - and was to be split up into Rs. 4s,500/- for the land and building and Rs. 1500/- for fittings like electric fans, electric motor pump and hand pump. The property was sold free from encumbrances and vacant possession was to be given with the completion of the sale. A draft agreement for sale was prepared by the plaintiff's solicitor and was sent to the vendors defendants' solicitor for approval. Alterations were made in the draft agreement by the vendor defendants' solicitor, the most material of such alterations being that the clause relating to vacant possession was struck out and in its place was substituted a clause to the effect that the vendors intend to give vacant possession. As dispute arose between the parties as to whether the draft agreement correctly recorded the terms agreed upon, it was mutually agreed that the agreement for sale would not be executed and the parties should proceed with the preparation of the conveyance without a formal agreement for sale. Thereafter the plaintiff proceeded with the preparation of the conveyance without a formal agreement for sale. Thereafter the plaintiff proceeded with the investigation of title. There was some dispute regarding the original partition deed which the vendors did not produce as it was in the custody of one Rabindra Mohan Mukherjee. At no time did the vendors inform the purchaser that the premises were occupied by a tenant who was in default in payment of rent for more than eight months. Far from pointing this out, the vendors agreed to give vacant possession. On February 7, 1961 the plaintiff's solicitor sent the draft conveyance for approval by the vendors defendants' solicitors. In the forwarding letter it was pointed out that the draft conveyance was sent subject to two conditions, viz. , vacant possession and making over of original title deeds to the purchaser.

(3.) THEREAFTER on February 16,1961 the purchaser's solicitor wrote to the vendors' solicitor for appointment of data and time for execution of conveyance. On February 24, 1961 the vendors defendants' solicitors repudiated the contract. Thereafter the vendor defendant entered into an agreement for sale of the premises to Hrishikesh Ganguly, the defendant No. 3 in this suit. On January 31, 1962 the vendor defendant sold and conveyed the premises to Ganguly. So far as Ganguly is concerned, the vendor defendants made no secret of the fact that the premises were in the occupation of one Barindra Nath Sen who was a tenant and who had defaulted in payment of rent for more than eight months. The vendor defendants also informed Ganguly that the plaintiff in this suit had instituted this suit and Ganguly agreed to purchase the premises subject to the result at this suit. Ganguly purchased the premises for a total sum of Rs. 36,750/-which was split up into Rs. 31,000/- for the premises and Rs. 5750/- for assignment of accumulated rent due from the tenant and also for mesne profits.