ANIL KUMAR GANGULY Vs. AMALENDU MUKHERJEE

JUDGEMENT

(1.) We have heard Mr. Sudhis Dasgupta, learned Senior Advocate appearing on behalf of the defendant No. 1/appellant and Mr. Utpal Bhattacharya, learned Advocate appearing on behalf of the plaintiff/ respondent.

(2.) Briefly, the facts of the case are as follows:The plaintiff/respondent No. 1 filed Title Suit No. 174 of 1976 against the defendant No. 1/appellant and the defendant No. 2/respondent No. 2 praying, inter alia, for a decree for specific performance of contract. The said suit was placed before the learned Third Court of Subordinate Judge at Alipore. The plaintiff/respondent No. 1's case, briefly, was that the defendants being the joint owners of Premises No. 122/IU, Monoharpukur Road, Calcutta-26 (a two storied pucca masonry building and comprising of an area of 2 cottahs and 18 sq. ft. of land) entered into an agreement for sale with the plaintiff in respect of the suit property i.e. the aforesaid premises, and executed an agreement for sale in favour of the plaintiff on 16.01.1976 and accepted an earnest money of Rs. 5001/- (five thousand and one), that the defendants further took a sum of Rs. 1,500/- (one thousand five hundred) from the plaintiff for payment of the arrears of Corporation taxes, that in terms of the agreement the defendants will sell the suit property for a total sum of Rs. 67.000/- (sixty seven thousand). It was further alleged that after the agreement for sale, Urban Land (Ceiling and Regulation) Act, 1976 was promulgated and as such without the permission of the competent authority no transfer by way of sale could be made and that the defendants were required to get the income tax clearance certificate, that in spite of repeated requests the defendants did not do anything to get permission from the competent authority and the income tax clearance certificate, that the defendants did not pay the arrears of corporation taxes and the same are still lying outstanding, that the plaintiff reasonably expected that the defendants will make all arrangements for completion of the transaction but strangely enough the plaintiff got information sometime in the last week of May, 1976 that the Defendant No. 1 was demolishing the roof of the first floor and the plaintiff personally saw that the Defendant No. 1 has demolished the entire roof of the first floor and the plaintiff was told by the Defendant No. 1 that the Defendant No. 1 will not sell the property to the plaintiff and defendant No. 1 has cancelled the agreement, that the plaintiff is an employee of Central Bank of India and applied for staff-loan for purchasing the suit property and deposited all papers and documents relating to the suit property in the Bank for getting sanction but after that incident the plaintiff has withdrawn the papers and handed over the same to his Advocate for necessary action, that the plaintiff thereafter sent lawyer's notice asking the defendants to comply with the terms of agreement but the defendants did not reply, that the defendants through their Advocate sent a letter to the plaintiff and the plaintiff has given a reply to such letter and that the defendants at the time of execution of the agreement handed over the original title deed of their property to the plaintiff and the same is now in possession of the plaintiff.

(3.) It may be noted here that in the original plaint there was no pleading that the plaintiff was through out ready and willing to perform his part of the contract. It appears that by way of amendment the plaint was amended subsequently and an allegation that the plaintiff was through-out ready and willing to perform his part of the contract was introduced in the plaint.