BAIJNATH Vs. KSHETRAHARI SARKAR

JUDGEMENT

(1.) This is an appeal by the plaintiff, and it arises out of a suit for specific performance or a contract to lease out certain immovable properties described in the schedule of the plaint by the defendant in favour of the plaintiff. The suit was contested in the Trial Court by the defendant, and dismissed, and so the plaintiff has preferred this appeal. The facts of the case will appear from the body of the judgment.

(2.) Before coming to the matters which are really in controversy between the parties, it will be useful to set out the following fact about which there is no dispute. Defendant Kshetra Hari Sarkar, since deceased, was the owner of municipal premises Nos. 12, 13, 14 and 15, Chingrihatta Lane, within police station Beliaghatta in the close suburbs of Calcutta. These premises comprise an area of about 20 bighas of land with a two storied building upon a portion. The rest of the land comprises mainly vacant land with three tanks and some tinroofed structures near the entrance gate. For reasons known to himself and not disclosed by evidence defendant Kshetra Hari wanted to give a long, term of lease of the premises on suitable terms, and for this purpose he engaged the services of one Gopeswar Mallik, an estate and house agent. On the 13th December, 1944, the defendant gave a letter of authority to Gopeswar (Exhibit 7(a)) empowering him to secure a lessee of the above premises for a term of 81 years at a rent of Rs. 300/- per month and 'selami' of Rs. 30000/-. The remuneration of the broker was fixed at Rs. 8000/-, and the letter of authority was to remain valid for a period of seven days from the date of issue. Plaintiff Baijnath Bajoria is a businessman having a large scale business in motor transport and also owning an agency under the Civil Supplies Department for storage of food grains. He required a large plot of land in the vicinity of Calcutta for business purposes, and he was also in communication with broker Gopeswar Mallik. Gopeswar communicated the terms of Kshetra Hari to the plaintiff on the 13th December, 1944, and they together inspected the premises in question on the same day at noon. The parties part company at this stage. It is the case of the plaintiff that the main terms of the lease were verbally settled direct between the parties on this day, and the case of the defendant is that beyond an, inspection of the locality by the plaintiff and some rambling discussion on some of the terms of the lease no - concluded agreement took place between the parties about the proposed lease. The defendant further contended that the negotiations for the lease took place only with regard to twelve bighas of vacant land from out of the four premises in question and not with regard to the premises in their entirety as alleged by the plaintiff. These contentions of the defendant will be dealt with in their appropriate place in the judgment.

(3.) To proceed now with the undisputed facts of the case. The solicitors of the plaintiff wrote a letter to the defendant on 14-12-1944 (Exhibit A) embodying certain terms of a contract of lease said to have been concluded between the plaintiff and the defendant on the previous day and requiring the defendant to send his documents of title for investigation pursuant to one of the terms of the alleged agreement. This letter reached defendant Kshetra Hari on the 20th December, 1944, and his solicitor Sarojendra Kumar Dutt sent a reply on 2-1-1945 (Exhibit 1(a)) denying on behalf of his client that there was any concluded contract between the parties and pointing out in particular that there was no agreement over some of the terms set forth in the letter of plaintiff's solicitor. After this there was some more correspondence between the solicitors of the parties until the defendants' solicitor finally repudiated the plaintiff's claim by a letter dated 27-1-1945 (Exhibit A(7)). Thereafter the plaintiff instituted this suit on 7-3-1945, for specific performance of the alleged contract. Defendant Kshetra Hari died during the pendency of the appeal in this Court and his heirs consisting of three sons and widow were substituted in his place as respondents.