DULCHAND OMPRAKASH Vs. DHIRENDRO MULLICK AND ORS.

JUDGEMENT

(1.) The plaintiff seeks specific performance of an agreement dated September 1, 1982 claimed to be modified on July 30, 1984 against the defendants.

(2.) According to the plaintiff, the defendant nos. 1, 2 and 3 are the trustees of a trust known as Trust Estate Jitendro Mullick. The trustees had entered into an agreement in writing on September 1, 1982 with the defendant no. 4 for lease of premises No. 7A, Kiran Sankar Roy Road, Kolkata- 700001. The defendant no. 4 had paid the consideration reserved under the said agreement to the defendant nos. 1, 2 and 3. The defendant no. 4 had nominated the plaintiff to obtain the lease on July 30, 1984. Such nomination was accepted by the defendant nos. 1, 2 and 3. According to the plaintiff, the agreement dated September 1, 1982 was modified on July 30, 1984. The plaintiff claims that, by a letter dated July 30, 1984 the defendant nos. 1, 2 and 3 informed the plaintiff that the trustees were making an application for obtaining Income Tax Clearance Certificate. The trustees promised to execute the lease as and when such certificate was obtained. The defendant nos. 1, 2 and 3 made an application under Section 230A of the Income Tax Act, 1961 on July 30, 1984. The income tax authorities issued a certificate on October 18, 1984. According to the plaintiff, the time for execution and completion of the lease was extended from time to time by mutual consent and the last of such extension was made by a letter dated August 5, 1986. The plaintiff claims that he has paid the balance consideration to the defendant nos. 1, 2 and 3. The plaintiff alleges that that in spite of repeated demands the defendant nos. 1, 2 and 3 did not execute the lease in his favour. The plaintiff therefore seeks specific performance of the agreement dated September 1, 1982 as modified on July 30, 1984.

(3.) The defendant nos. 1 and 3 have filed a written statement. The defendant nos. 1 and 3 claim that the defendant no. 4 had procured the agreement dated September 1, 1982 by misrepresentation. The defendant nos. 1 and 3 had refunded the sum of Rs.10,000/- and had returned the cheque of Rs.20,000/-. They claim that the agreement for lease was not acted upon. The agreement according to them is unconscionable, illegal, procured by false representation and not binding upon the trust. They also claim that the agreement was duly terminated. With regard to the modification of 1984, the defendant nos. 1 and 3 claim that the same was a draft deed and was never executed by the trustees. Such draft lease according to the defendant nos. 1 and 3 has no legal validity. It was not meant to be an agreement and, therefore, could not be treated as a modification of the agreement for lease dated September 1, 1982. They claim that the 1984 draft lease was prepared by the plaintiff and handed over to one of the trustees of the trust. All the trustees of the trust did not see the draft lease and the same was not executed by the trust.