SARAL KUMAR CHATTERJEE Vs. MADHUSUDAN AUDDY

JUDGEMENT

(1.) This is a suit for the specific performance of a contract for the sale of the demarcated eastern portion of premises No. 92 Narkeldanga Main Road measuring about 1 Bigha 10 Cottas 14 Chittaks and 24 Sq. Ft. for the price of Rs. 45,000.00. This suit was originally filed by the plaintiff against Kashinath Auddy, the vendor, but he having since died, the defendants Nos. 1 and 2 have been substituted in his place. The agreement of which specific performance is asked for is dated April 12, 1954 entered into between the plaintiff and Kashinath Auddy and inter alia, provides as follows:

(2.) It is stated that the defendant failed and neglected to carry but the said agreement on his part and/or complete the transaction in terms of the agreement and has since wrongfully repudiated the same and that the plaintiff has been and still is ready and willing to perform his part tinder the said agreement.

(3.) There are three written statements. The first is by Kashinath Auddy who has since died. His defence, inter alia, is that the plaintiff fraudulently and on false representation procured his signature on the document that it was in respect of a mortgage for Rs. 3,000.00. He has further stated that only Rs. 1,000.00 was paid on the execution of the document and the balance sum of Rs. 2,000.00 has not been paid. His next defence is that the plaintiff's attorney was also his attorney who was a party to or privy to the said purported transaction with full knowledge of all facts. He denied that the plaintiff has been and still is ready and willing to perform his part under the said agreement. He has particularly denied the plaintiff's right to claim specific performance of the purported agreement on the ground that it was procured fraudulently and by making false representation as stated before and that he has avoided the said agreement, He, states that the purported agreement was or otherwise not specifically enforceable; that the suit for specific performance is not maintainable as the plaintiff had not yet approved the defendant's title to the property. The written statements of the other two defendants are on the same line as that of Kashinath and they have also denied that the plaintiff is entitled to specific performance of the purported contract. 3A. The defendant Kuntalmala Dey, in her written statement, has adopted the written statement of Kashinath Auddy, deceased.