MANAGING DIRECTOR Vs. ROSHANLAL MITTAL & ORS

JUDGEMENT

(1.) This first miscellaneous appeal which is directed against an order being No. 44 dated 25th March, 2015 passed by the Learned Civil Judge (Senior Division-in-Charge), Alipurduar in Title Suit No. 24 of 2012 was admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure on 18th June, 2015.

(2.) The present application for stay was filed by the appellant in connection with the said appeal. While the said application was taken up for hearing, learned counsel appearing for the parties requested us to dispose of the appeal itself on merit as all the parties are now before us and the appeal can be disposed of on the materials before us. Accordingly, we have decided to dispose of the appeal by dispensing with the requirement of filing paper book. Let us now consider the merit of this appeal in the facts of the present case.

(3.) The plaintiffs/respondents filed a suit for specific performance of contract and alternatively for damages. The agreement which was sought to be enforced by way of specific performance of contract, was executed between the defendant/appellant and one Mantu Baitha for sale of 1300 shade trees for the price as mentioned in the said agreement. Admittedly, 474 shade trees have already been supplied by the defendant to the said Mantu Baitha. Dispute is with regard to the sale of the remaining 826 shade trees by the defendant to its purchaser as per the said agreement. The said Mantu Baitha died subsequently and after his death his heirs and legal representatives viz. Kalyani Baitha and others executed an agreement with the plaintiff herein on 26th January, 2011 by assigning the said contract dated 21st April, 2009 which was entered into between the defendant and the said Mantu Baitha. The plaintiff being the assignee under the said contract has filed the present suit against the defendant for specific performance of contract or alternatively for damages.